The work of Catholic Law Professor Roger Hartley was recently referenced in a Reuters article regarding Jennifer Abruzzo, the National Labor Relations Board’s general counsel, and her recent move to overturn precedent that allows employers to force workers to attend anti-union meetings, seeking to blunt one of U.S. businesses’ most potent weapons against worker organizing. Hartley’s 2010 law review article, “Freedom Not To Listen: A Constitutional Analysis of Compulsory Indoctrination Through Workplace Captive Audience Meetings,” was referenced as evidence to support Abruzzo’s proposition that mandatory meetings are inherently unlawful.
Date: April 13, 2022
By: Hassan Kanu
Why the labor board wants to free 'captive' workers from bosses' messaging
The labor board held in 1946 that captive audience meetings discussing unionization were per se (inherently) unlawful, shortly after enactment of the National Labor Relations Act, Roger Hartley wrote in a 2010 law review article on employees’ “freedom not to listen.” Hartley is a law professor at the Catholic University of America Columbus School of Law.
But that interpretation was short-lived.
Big businesses complained that the board was restricting free speech, and lawmakers accepted their protests with hardly any serious interrogation, according to the legislative record. Congress amended the NLRA just a year later, in 1947, adding that the “expressing of any views, arguments or opinion” can’t be considered an unfair labor practice.
That new provision, Section 8 (C), was in turn interpreted in a one-line statement of law, when the board held in 1948 that it means captive audience meetings are permissible.
But a “close examination of the legislative history reveals no basis for such a conclusion,” Hartley wrote. And the clause itself says nothing at all about mandatory meetings during work hours.
The “Constitution's free speech guarantees simply do not provide any person the freedom to coerce listening,” Hartley wrote in the 2010 article.
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