This is the question that Paul Secunda considers in a new paper, “The Future of NLRB Doctrine on Captive Audience Speeches.” Under established doctrine, employers may require employees who are contemplating unionization to attend meetings at which speeches opposed to unionization are presented.  However, the National Labor Relations Board has recently undergone some significant membership changes that could conceivably lead to reconsideration of the “captive audience” doctrine.  Paul’s paper describes how this reconsideration might come about and discusses potential outcomes.  His conclusion:

I believe the Board will likely not prohibit all captive audience meetings as I believe they could, and should, do under current law.  Rather, the Board is likely to engage in a more restrained approach based on already-existing doctrines and cases given the Board’s desire to avoid the misimpression that it is merely engaging in politically-motivated flip-flopping.

Paul’s paper was part of a symposium at Indiana University-Bloomington on labor and employment law under the Obama Administration.  The abstract appears after the jump.

Under the National Labor Relations Act, as interpreted by the courts and the National Labor Relations Board (Board) over the last sixty years, employers have been permitted to give captive audience speeches at work to employees contemplating unionization. Employees must attend such meetings, cannot question the employer representative, and may not have the union come to the workplace to present opposing views. Not surprisingly, these speeches are one of the most effective anti-union weapons that employers currently have in their arsenal. Now that the Board has both a quorum and a sizable Democratic majority, this Essay considers if, and how, the Obama Board might limit the rights of employers to engage in captive audience speeches during union organizational campaigns.

If the issue arises in a representation election case, the Board might expand the Peerless Plywood doctrine to prohibit captive audience speeches for a longer period of time before an election. On the other hand, If a union raises the captive audience speech issue in a case alleging a Section 8(a)(1) unfair labor practice, the Board might reexamine its precedent under Section 8(c) and consider when exactly employer captive audience speech tactics become coercive under Exchange Parts and Gissel. This approach would require a more searching inquiry into the content of the speech. It might also lead the Board to adopt a presumption of employer coercion where employees are unable to leave such a meeting or ask questions of the employer’s speaker. An employer would be able to rebut such a presumption under a modified form of the Struksnes polling standards that would make clear the purpose of such meetings and assure employees against retaliation for not adhering to the employer’s anti-union message.