The National Labor Relations Act (NLRA) protects workers’ rights to engage in activities related to organizing and collective bargaining. The statute prohibits employers from interfering with employees who are exercising their rights, or from coercing them against such activities. New Jersey employment laws provide some protections for labor organizing, but much of the work happens at the federal level. The National Labor Relations Board (NLRB) has the authority to investigate and adjudicate alleged NLRA violations. In April 2022, the General Counsel (GC) of the NLRB issued a memo calling on the NLRB to challenge meetings held by employers to address labor organizing activities, which employees are required to attend. The GC’s position would require the NLRB to reverse a seven-decade-old precedent allowing these types of meetings.
Employees have the right to “self-organization,” to join a union or form their own, and to select representatives to engage in collective bargaining with their employers. They also have the right to refrain from engaging in these types of activities. Employers may not “interfere with, restrain, or coerce employees” with regard to any of these rights. They may not discriminate against employees based on participation in protected activities, nor may they retaliate against workers who engage in acts protected by the NLRA.
In 1948, the NLRB issued a decision regarding an employer that required employees to attend a meeting, held during work hours, at which several managers gave speeches discouraging union organizing or membership. A Trial Examiner had held that the “compulsory” nature of the meeting violated the NLRA’s ban on coercion by employers. The NLRB disagreed. It held that the employer’s actions were not unlawful under the NLRA based on the “totality of the circumstances.” This decision has functioned as a precedent for seventy-four years in cases challenging mandatory employee meetings in which employers address organizing activities.
The GC issued Memorandum GC 22-04, entitled “The Right to Refrain from Captive Audience and other Mandatory Meetings,” on April 7, 2002. She notes that such mandatory meetings “inherently involve an unlawful threat” against employees who choose not to attend, as is their right under the NLRA. She also calls attention to the “inequality of bargaining power” between employers and individual workers, as well as the extent to which workers are economically dependent on their employers.
The U.S. Supreme Court held in 1969 in NLRB v. Gissel Packing Co., Inc. that threats made by employers against union organizing and other protected activities both violate the NLRA and do not fall under the protection of the First Amendment. The GC contrasts this ruling with the NLRB’s 1948 ruling. That precedent, she states, has allowed employers to threaten employees, implicitly or explicitly, against NLRA-protected activities.
The GC urges the NLRB “to correct [the] anomaly” created by the 1948 decision. She argues that mandatory work meetings to discourage organizing may violate the NLRA in two situations:
1. When employees are “forced to convene on paid time”; or
2. When they are “cornered by management while performing their job duties.”
The employment attorneys at the Resnick Law Group represent employees and job seekers in New Jersey and New York, helping them assert their rights under federal and state law. Please contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation with a member of our team.