NLRB General Counsel Seeks To Trample Employers’ Rights

Last week, the General Counsel to the National Labor Relations Board (Board) issued Memorandum GC 22-04 declaring her intention to ask the Board to ban “captive audience” speeches by employers. While employers are aware of the General Counsel’s aggressive agenda, this memorandum is still surprising because it displays an extreme bias against employers as well as a patronizing and unrealistic view of today’s employees. Moreover, this is an area where the Board already significantly restricts an employer’s constitutional right to free speech. The General Counsel now seeks to further narrow employer’s rights in an effort to advance her cause.

Since 1948, the Board has allowed employers to meet with employees during working time to voice its opposition to a union. These meetings are critical to an employer’s ability to explain its viewpoint to its employees and provide factual information for employees’ consideration. The Board already limits when these meetings can take place, in what format they may be held, and what can and cannot be said.

The General Counsel believes, however, that employees should always have a choice to attend these meetings and that requiring attendance is inherently threatening to the employee. She intends to ask the Board to outlaw these mandatory employer meetings.

She also wants the Board to ban employers (and supervisors) from talking to employees about the employer’s stance on unions during working time. She contends that when employees are “cornered by management while performing their job duties,” they are “captive” and cannot simply walk away. Yet the Board already heavily regulates the employer’s conduct here as well, insisting that an employer’s speech be free of coercion, promises or threats, and polling. If an employer crosses the line, stiff penalties are possible, including an order to recognize and bargain with the union without regard to the election results.

To get a sense of the politics at play here, we encourage all employers to read the General Counsel’s memorandum. Employers facing union organizing efforts should consult with counsel to determine how best to proceed in this current climate. KZA attorneys are well versed in Board law and the dynamics involved in elections and Board litigation. We are always available to assist you. 

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.