The Contemporary 'Fist Inside the Velvet Glove' - Employer Captive Audience Meetings Under the NLRA

Abstract

One of the more effective anti-union techniques used by employers during labor organizational campaigns is the holding of employee captive audience meetings. Employees, in the midst of deciding whether or not to join a union, are compelled to attend an assembly where management has a one-way conversation with them about the evils of unionism. These meetings occur during working hours, when the employer is best able to exert its economic authority over employees and to play on fears of job loss if employees vote for the union.

While employees are free to leave these meetings in the formal sense, they may only do so at the peril of losing their jobs. Further, employers can exclude pro-union employees from such meetings and can fire employees for attempting to ask questions. When one also considers that unions generally lack access to employer property to disseminate pro-union messages, one begins to understand the imbalance of this workplace dynamic. What is most amazing to those who hear about the captive audience meeting tactics for the first time is that such actions by employers are not only tolerated in the United States, but have been considered lawful under the National Labor Relations Act for over sixty years.

Based on employee free choice, the conduct/speech distinction in labor picketing cases, and the threadbare nature of NLRB precedent in this area, this Article contends that the Board should return to its Clark Bros. doctrine and make employer captive audience meetings a per se violation of Section 8(a)(1) of the NLRA. No need exists for statutory amendment of the NLRA because the current language of the Act, even in light of the Section 8(c) employer free speech provisions, readily supports this alternative interpretation. Without the proverbial gun to their heads, employees will again be able to exercise free choice in deciding whether they wish to be represented by a labor organization.

Keywords: Captive Audience Meetings, Union Organization Campaigns, NLRA, NLRB, Section 8(C), Employee Free Choice, Taft-Hartley