‘Captive Audience’ Memo from NLRB General Counsel Survives First Legal Battle

Mathew Moldawer
Mathew Moldawer

Since the decision in Babcock v. Wilcox Co., 77 NLRB 577 (1948), the NLRB has permitted captive audience meetings. Under the captive audience doctrine and Section 8(c) of the NLRA, employers may hold mandatory employee meetings and speak to their employees about unionization so long as the employer does not threaten, punish, or promise benefits to the employees. Captive audience meetings are one of the few remaining arrows in management’s quiver – but that may be changing.

In April 2022, NLRB General Counsel Jennifer Abruzzo circulated a memorandum which outlined her position that captive audience meetings were at odds with the principles of labor law. 

Since the memorandum was circulated, two lawsuits attacking the position have been filed. One of those, for the time being at least, was defeated this month. The U.S. District Court for the Western District of Michigan agreed with Abruzzo and dismissed the lawsuit, Associated Builders and Contractors of Michigan v. Abruzzo,1:23-cv-00277 (W.D. Mich). U.S. District Court Judge Robert Jonker ruled that the plaintiffs lacked standing, the legal right to initiate a lawsuit, because they did not show they suffered an injury or threat based on the memorandum. The Associated Builders and Contractors of Michigan have vowed to appeal the decision.

The other lawsuit is working its way through the U.S. District Court for the Eastern District of Texas. In that case, Burnett Specialists et al v. Abruzzo et al, 4:22-cv-00605 (E.D. Tex.), plaintiffs are a group of staffing firms who allege the memorandum violates their First Amendment rights and seek an injunction to prevent enforcement of Abruzzo’s guidance. 

The memorandum and lawsuits come at a time where unionization is a hot topic, with ongoing battles involving union advocates and companies such as Starbucks and Amazon. In fact, several states, including California, Connecticut, Maine, Minnesota, New York, Vermont and Oregon have enacted or have pending legislation aimed to curb captive audience meetings.

Management should be aware of the restrictions which limit speech to employees when union organization is in progress. In some circumstances, even seemingly innocent conversations may constitute interference and may even lead to unfair labor practice charges.

Captive audience meetings are mandatory meetings, and it is a fine line to discipline an employee for failure to show for a meeting as opposed to discipline due to their support or involvement in a union. Management should pay attention to the status of any legislation impacting captive audience meetings in their respective states and keep apprised of the pending lawsuits attempting to enjoin enforcement of Abruzzo’s memorandum.

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