As organized labor activity has been on the rise in recent years and stories about union-related matters have become regular news, labor relations questions have ever-increasingly become front-of-mind for employers. It is also not crazy to think that unions that have been considering an organizing effort will decide in the next couple of months to roll the dice now in anticipation that federal labor policy will (again) radically shift following the results of last week’s elections.

What has not garnered as much attention as the Starbucks and other prominent unionization efforts is the effort to strip from employers one of their most effective tools in countering union efforts to organize: mandatory employee meetings where employers can address and rebut the kinds of sweeping promises common to a union sales pitch.

In the midst of an organizing campaign, and particularly so in the days leading up to a union election, employers have long used meetings with employees as an opportunity to communicate their views on unionization and share their position on the upcoming vote. And for good reason — such meetings are one of the most effective tools to respond to promises unions make to employees and educate workers on the fact that unions have the legal right to make all sorts of promises about things they know they cannot guarantee, while employers are constrained by law from making almost any promises to employees.

These meetings are also very important mechanisms to share information that most unions prefer to avoid discussing — like mandatory dues, how long first contract negotiations can take, the potential for union decertification, and a union’s ability to call employees out on strike and punish them if employees will not toe the picket line. Much like with meetings to discuss other topics such as safety concerns or policy changes, employers often make attendance at such meetings mandatory and compensate employees for their time at such meetings because their attendance is a job expectation.

Given the effectiveness of such meetings, if you’re a cynic like me, then perhaps it does not surprise you that political forces favoring unions want to prevent employers from conducting them. In April 2022, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memo announcing that she intended to push the NLRB to make legal rulings finding that employer mandatory meetings covering union-related and labor relations matters violate the National Labor Relations Act (NLRA). Such rulings would be an explicit reversal of NLRB decisions dating back to 1948 taking the position that employers do not violate the NLRA by requiring employees to attend meetings where the employer shares its messages regarding unionization. However, notwithstanding the General Counsel’s request, the NLRB has yet to reverse these decisions, and last week’s presidential election results certainly suggest the policy pendulum at the NLRB is likely to soon swing in the other direction.

But the current political winds at the federal level will not stop all momentum to prevent employers from using employee meetings to combat against the lofty promises unions make and communicate information they want to make sure is available to employees. Several “blue” states — California, Hawaii, Illinois, Vermont, and Washington — have all passed laws in the last year making employer captive audience meetings illegal, joining Connecticut, Maine, Minnesota, New York, and Oregon, which already had similar laws on the books. Alaska voters appear to have also adopted such a law in their state. If last week’s election results suggest anything, it may be that, in anticipation of a federal about-face in the organized labor arena, more states will try to take matters into their own hands and consider additional bans on these types of meetings.

The legality of such state laws is not without question. While Oregon’s law — the first of its kind and passed in 2010 — survived a legal preemption challenge, the argument remains that the NLRA preempts such laws as an impermissible intrusion on federal labor policy and employer rights preserved by federal law. With the reshaping of the federal courts in recent years, we can reasonably expect someone will attempt another NLRA preemption challenge, hoping to land before a federal judge or court more likely to be sympathetic to the argument. There is also a compelling argument that such state laws infringe employer First Amendment rights, particularly given that they target a particular speaker and a particular message, while not banning mandatory meetings to discuss things like safety or company updates. Such state action is therefore not content- or viewpoint-neutral, as required by most types of First Amendment analysis. To that end, the Illinois Policy Institute is making this First Amendment argument in a lawsuit it recently filed asking a federal court in Chicago to block the Illinois Worker Freedom of Speech Act from going into effect on January 1, 2025. How the Chicago federal court rules in that case may have wide-ranging implications for the other states’ statutes and the future of efforts to ban captive audience meetings.

As labor relations policy is sure to continue evolving in the coming years, employers should stay aware for now of the developing captive audience landscape, particularly if they face union activity in a state with a current ban on employer meetings of the type described in this article. Employers in such states can still hold meetings to discuss their message regarding unionization and make attendance at them voluntary — and should absolutely do so if faced with a union campaign.

© 2024 Foley & Lardner LLP

by: Christopher G. Ward of Foley & Lardner LLP

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