On November 13, 2024, in Amazon.com Services LLC, the National Labor Relations Board (NLRB) ruled that an employer violates the National Labor Relations Act (NLRA) and commits an unfair labor practice when it compels its employees, under threat of discipline or discharge, to attend “captive-audience meetings” during which the employer expresses its views concerning unionization. In declaring such meetings unlawful, the NLRB overturned approximately 75 years of NLRB precedent, as set forth in Babcock v. Wilcox, 77 NLRB 577 (1948).
NLRB’s Reasoning
The NLRB determined that “captive-audience meetings” violate Section 8(a)(1) of the NLRA, because such meetings have a “reasonable tendency to interfere with and coerce employees in the exercise of their Section 7 right to freely decide whether or not to unionize.” Section 7 of the NLRA provides, in relevant part, that employees “shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.” Pursuant to Section 8(a)(1) of the Act, employers cannot “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”
In its Amazon.com decision, the NLRB held that regardless of whether an employer supports or opposes unionization, an employer engages in an unfair labor practice in violation of Section 8(a)(1) when it compels its employees, “on pain of discipline or discharge,” to attend a meeting during which the employer “expresses its views concerning unionization.” While the Board recognized an employer’s general right to dictate the activities that fill an employee’s workday, it nevertheless determined that holding captive-audience meetings constitutes “meddling in the decision-making sphere that, under the Act, belongs exclusively to employees: namely, whether, when and how employees choose to exercise their Section 7 rights or to refrain from doing so.” The NLRB found that captive-audience meetings impermissibly interfere with, and infringe upon, an employee’s exercise of their “Section 7 right to freely decide whether or not to unionize, including the right to decide whether, when, and how they will listen to and consider their employer’s views concerning that choice.”
Further, the NLRB stated that captive-audience meetings provide an employer with a mechanism for observing and surveilling employees while the employer discusses its views on union-related matters. Even if employees do not draw attention to themselves by speaking up or speaking out at captive-audience meetings, the NLRB reasoned that the ability of the employer to “observe the behavior of employees…will reasonably tend to reveal their sentiments concerning unionization.” The Board pointed to several examples of nonverbal conduct that could possibly subject an employee to scrutiny, including where and with whom someone sits, “raised eyebrows, rolled eyes, or darting glances,” and concluded that forced exposure to “[s]uch scrutiny tends to interfere with the exercise of Section 7 rights.”
In addition, the NLRB reasoned that because “[c]aptive-audience meetings are particularly powerful tools to force a message onto unwilling listeners,” the employer’s ability to compel employee attendance at such meetings under the threat of discipline or discharge lends a “coercive character” to the employer’s message regarding unionization – a message that the captive-audience members are forced to receive. Finally, the employer’s ability to compel employees’ attendance reinforces and “demonstrates the employer’s economic power over its employees and reasonably tends to inhibit them from acting freely in exercising their rights.”
Safe-Harbor Exceptions
To address employers’ concerns about free speech principles under Section 8(c) of the NLRA and the First Amendment, the NLRB specifically stated: “We do not, however, broadly prohibit employers from holding workplace meetings with their employees to express their lawful views on unionization in a noncoercive manner.” (Emphasis added.) In its decision, the NLRB gave employers a roadmap to avoid liability “specify[ing] straightforward steps that employers may take to avoid violating Section 8(a)(1).” As per the NLRB, employers may lawfully hold workplace meetings with their employees regarding their lawful views on unionization if: (1) employees are informed and provided reasonable advance notice of the subject matter of the meeting; (2) employees’ attendance at the meeting is voluntary, and an employee will not face discipline, discharge or other adverse consequences for failing to attend the meeting or for leaving early; and (3) the employer will not keep records of which employees attended, failed to attend, or left the meeting. Moreover, given that employers may have previously reasonably relied on the NLRB decision in Babcock, which permitted captive-audience meetings to discuss unionization, the NLRB made clear that the new noncoercive standard set forth in Amazon.com Services, LLC would only be applied prospectively.
Takeaways
In light of this NLRB decision and the reversal of 75-years of precedent, going forward, an employer should take care to ensure that any meeting it conducts with its employees to discuss its viewpoint on unionization meets the revised NLRB standard. If conducting such meetings, it is advisable for employers to maintain written records to protect themselves should their actions be challenged by employees or unions. Lastly, with President Trump taking office in January 2025, the NLRB’s actions should be carefully monitored as there may be further changes and legal developments in this area.
This summary is for informational purposes only and is not intended to constitute legal advice. This information should not be reused without permission.
