NLRB Rules Captive-Audience Meetings Unlawful

At a Glance

• The National Labor Relations Board issued another impactful decision in Amazon.com Services LLC, upending almost 80 years of precedent. This decision comes less than a week after the Board overturned the nearly 40-year precedent of Tri-Cast.
• The Board held it is unlawful for employers to compel employees to attend meetings where the employer expresses its views on employee unionization, even if such views are noncoercive and nonthreatening.
• The decision does not entirely outlaw such meetings, but employers must provide certain assurances before they can express their views on unionizing to their workforces.

The Board’s Decision

On Wednesday, November 13, 2024, in Amazon.com Services LLC (Amazon), the National Labor Relations Board declared that an employer violates the National Labor Relations Act when the employer requires, on threat of discipline, employees to attend a meeting where the employer expresses its views on unionization.

For 76 years, since the Board’s decision in Babcock and Wilcox Co. 77 NLRB 577 (1948), the Board permitted employers to hold mandatory meetings during workhours where the employer expressed its views on union-related matters, so long as the employer’s views were noncoercive and did not convey unlawful threats to employees. Despite this longstanding precedent, this new decision deems such meetings unlawful.

The Board found captive-audience meetings violate Section 7 of the NLRA because such meetings (1) interfere with an employee’s right to decide whether to participate in debates concerning unionization; (2) allow employers to observe and surveil employees as they discuss union-related matters that may interfere with the exercise of employee’s rights; and (3) are coercive if attendance is mandatory as it highlights “the employer’s economic power over its employees and reasonably tends to inhibit them from acting freely in exercising their [Section 7] rights.”

Right to Participate in Debates. The Board determined that such captive-audience meetings interfere with an employee’s Section 7 right to freely decide whether, and to what degree, the employee will participate in the debate concerning union representation. The Board reasoned that while employers may express their views on unionization under the Act, an employer may not compel employees to listen to such views.

Ability to Observe and Surveil. The Board found that captive-audience meetings are a mechanism for employers to observe and surveil employees as their employer discusses union-related matters. The Board claimed that such meetings provide employers with an opportunity to observe the behaviors of employees to gain intel on employees’ stances toward unionization (e.g., “raised eye-brows, rolled eyes, or darting glance” or “whether someone sits and talks with known union supporters or opponents”). The Board said, “[s]uch scrutiny tends to interfere with the exercise of Section 7 rights.”

Coercive Character. The Board held that mandatory, captive-audience meetings, required under threat of discipline or discharge, are of a coercive character. The Board explained that the employer’s ability to compel attendance highlights “the employer’s economic power over its employees and reasonably tends to inhibit them from acting freely in exercising their [Section 7] rights.”

Board member Marvin Kaplan dissented from the ruling because, inter alia, the decision violates employers’ First Amendment rights.

What Now?

The Board stated that it will only apply this new rule for captive-audience meetings prospectively. Additionally, the Board’s decision includes a safe-harbor provision, allowing employers to hold meetings during work-hours and express their views concerning unionization if, reasonably in advance of the meeting, the employer informs the employees that (1) the employer intends to express its views on unionization at the meeting; (2) employees will not be subject to discipline, discharge or other adverse consequences for failing to attend the meeting; and (3) the employer will not keep records of attendance of the meeting.

The Board’s decision comes at an auspicious time, as many expect that President-elect Trump will appoint a new general counsel on inauguration day, as President Biden did, and perhaps even replace the Board members themselves, which would set the stage to undo many of the dramatic changes in Board precedent over the last four years. If so, Babcock and Wilcox Co. and its nearly 80 years of progeny will likely make a swift return. That being said, Alaska just passed Ballot Measure 1 on November 5, becoming the eleventh state to ban captive-audience meetings.

While we wait to see where things are headed under the next administration, employers should tread lightly when organizing workplace meetings to discuss unionization.

Legal clerk Chelsea K. Rader contributed to this update.