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Hastings Law Journal

Abstract

Union density in the private sector in the United States is less than ten percent. Yet studies have shown millions of nonunionized U.S. workers would like to be represented by a union. Employer resistance to unionization is a key factor in whether employees are able to successfully elect a union as their bargaining representative. Although some tactics employers use in antiunion campaigns are unlawful under the National Labor Relations Act, "captive audience meetings" are not. Employers may lawfully hold mandatory captive audience meetings, assembling employees to listen to anti-union speeches, during an organizing campaign. The sole restriction on such meetings is that they may not be held during the last twenty-four hours before a National Labor Relations Board election. These meetings are highly effective in dissuading employees from voting for a union.

This note proposes a ban on captive audience meetings in union organizing campaigns. It examines the history of captive audience meetings, including the legal underpinnings of the current state of the law. The basic conflict between the doctrine allowing captive audience meetings and the policy goals of the NLRA is discussed, and flawed arguments in support of employer participation in elections are refuted. The note identifies four distinct, yet related, bases of support for the proposal: it requires only a logical extension of existing NLRB law; it avoids the overriding of employer property rights because it does not require equal access by unions; it is in accordance with the First Amendment doctrine of regulating speech directed at a "captive audience;" and it has been implemented in other industrialized countries, as well as individual states.

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