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NLRB Prohibits Captive-Audience Meetings

The National Labor Relations Board (the “Board” or “NLRB”) recently issued a major decision, Amazon.com Services, LLC, 373 NLRB No. 13 (2024), that reverses longstanding Board precedent regarding an employer’s rights during a union organizing drive.

In a 3-1 decision, the NLRB held that “captive-audience” meetings – i.e., meetings that an employer requires employees to attend during the workday in order to hear the employer present its position on potential unionization – violate Section 8(a)(1) of the National Labor Relations Act (“NLRA”), by interfering with employees’ rights, under Section 7 of the NLRA, to engage in protected concerted activity.

The Board’s new rule, which outlaws a practice that has been lawful for nearly eight decades, applies only prospectively, because employers holding such meetings up until now have justifiably believed them to be legal.

Background

Following the NLRA's 1935 passage, the NLRB initially barred employers from holding captive-audience meetings. The Board reversed course, however, in its 1948 Babcock & Wilcox Co. decision, which followed recently enacted, pro-employer reforms to the NLRA.

Since the Babcock & Wilcox Co. decision, the NLRB had allowed employers to hold captive-audience meetings, without any limits as to frequency or duration. Nor did an employer have any obligation to permit dissenting employees to voice their opinions during such meetings. The Board’s sole caveat was that an employer could not hold a captive-audience meeting within 24 hours preceding a union representation election.

In a 2022 memo to agency field offices, NLRB General Counsel Jennifer Abruzzo announced her intent to ask the Board to reverse its post-Babcock & Wilcox Co. approval of captive-audience meetings, which she believed to be “at odds with fundamental labor-law principles, our statutory language, and our Congressional mandate.” The Amazon case presented such an opportunity.

The Amazon Decision

Amazon involved a union organization campaign at a Staten Island warehouse. In an attempt to counter the union’s pitch to employees, the company held a series of captive-audience meetings over the course of several months.

As permitted by Babcock & Wilcox Co., Amazon held meetings every 45 minutes, from 9 a.m. to 9 p.m., six days a week, in which management representatives conveyed the company’s views on the union organizing drive and the collective bargaining process in general. Managers personally notified employees that their presence was required and scanned their ID badges to record their attendance.

In response to unfair labor practice charges filed by the union, the NLRB held that captive-audience meetings unlawfully interfere with employees’ rights under Section 7 of the NLRA. In support of its decision, the Board majority raised a number of arguments:

• Captive-audience meetings unjustifiably interfere with an employee’s right to freely decide whether, when, and how to participate in a debate concerning union representation, or to refrain from doing so.

• Such meetings improperly allow an employer to surveil employees and observe their reactions as the employer addresses the exercise of those employees’ Section 7 rights.

• An employer’s ability to compel attendance at such meetings lends a coercive character to the employer’s message regarding unionization. In the view of the Board majority, the employer’s ability to require attendance at such meetings demonstrates the employer’s economic power over its employees and thereby tends to inhibit them from freely exercising their rights.

In dissent, Member Marvin Kaplan argued that the Board’s reversal of Babcock & Wilcox Co. would restrain employers’ First Amendment right to free speech. In response, the majority noted that Section 8(c) of the NLRA allows an employer to express its views on unionization to employees, but only if no “threat of reprisal or force or promise of benefit” is made. According to the majority, because captive-audience meetings mandate employee attendance, on pain of discipline or discharge, this amounts to a “threat of reprisal” and falls outside of the protection of Section 8(c) or the First Amendment.

Perhaps realizing that its decision could create uncertainty about what types of employer communications would be permitted under the NLRA going forward, the Amazon Board also established a “safe harbor from liability for employers who wish to express their views concerning unionization in a workplace, work-hours meeting with employees.” The safe harbor insulates employers who inform their employees, “reasonably in advance” of the meeting, that:
 

• The employer intends to express its views on unionization;

• Attendance is voluntary, and employees will not be subject to discipline, discharge, or other adverse consequences for not going to the meeting or for leaving the meeting early; and

• The employer will not keep records of which employees attend, do not attend, or leave the meeting.

Conversely, an employer will violate the NLRA if, under all the circumstances, “employees could reasonably conclude that attendance at the meeting is required as part of their job duties or could reasonably conclude that their failure to attend or remain at the meeting could subject them to discharge, discipline, or any other adverse consequences.”

The Future Of The Amazon Decision

The lasting effects of the NLRB’s Amazon decision are not yet clear. If Amazon appeals the ruling, a federal Court of Appeal may choose not to enforce it. In an appellate court’s view, the Board may bear a high burden in justifying a decision to abandon a 76-year-old precedent. (However, a decision by a Court of Appeal not to enforce the Amazon ruling would not prevent the NLRB from adhering to its new rule in future decisions.)

Before that process even plays out, a more imminent change is coming in the form of the second Trump administration. Presumably, upon taking office, President-elect Trump will quickly dismiss NLRB General Counsel Abruzzo and appoint a new General Counsel with a more pro-employer orientation. That replacement might choose not to try to enforce the Amazon ruling. Additionally, a Republican-majority Board that may soon follow President-elect Trump’s inauguration could overturn the decision, upon being presented with a new case.

Those potential developments, however, remain uncertain. One new factor that may come into play is that, having been elected with strong support from working-class voters, President-elect Trump may be less apt to appoint strongly pro-employer Board members than has historically been the case with Republican presidents.

Tips For Employers

In the wake of Amazon, there are a number of steps employers can take to comply with the Board’s new rule and reduce their chances of being found in violation of the NLRA:
 

• Ensure that managers and supervisors understand that, at least for the immediate future, captive-audience meetings are no longer permissible.

• In setting up any voluntary meetings with employees about unionization, follow the Board’s safe-harbor provisions. For instance, if a meeting is scheduled through electronic calendar notifications, without a clear statement to employees that the meeting is voluntary, it could be found to violate the NLRB’s new rule.

• In her 2022 memo, General Counsel Abruzzo also took the position that if a supervisor approaches an employee during working time to discuss unionization, in a context in which the employee believes they cannot walk away, that likewise violates the NLRA. While the Board declined to decide that issue in Amazon, employers should be aware that such impromptu discussions between supervisors and employees – which, like captive-audience meetings, have been a fixture of employer communications on union issues – could see a similar fate.

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If you have questions about your organization’s obligations in the wake of the Amazon decision, please feel free to contact one of our experienced labor lawyers.