Going against decades of precedent, the National Labor Relations Board (“the Board”), in Amazon.com, 373 NLRB No. 136 (2024), held that employers violate federal labor law when they require employee attendance at meetings where the employer shares its views on unionization (known as captive audience meetings). The Board stated that such meetings “interfere with employee rights under Section 7 of the National Labor Relations Act (“NLRA”) to freely decide whether, when, and how to participate in a debate concerning union representation, or refrain from doing so.”
Background
In 2021, the Amazon Labor Union began a campaign to organize employees at two Amazon.com fulfillment and storage centers in Staten Island, New York. During the campaign, Amazon held various required meetings with employees where it shared its views on unionization and made various statements, which resulted in the union’s filing of various unfair labor practices charges against Amazon.com. The matter was tried before an Administrative Law Judge. While finding other violations of the NLRA, the ALJ, relying on decades of Board precedent under Babcock & Wilcox, dismissed the General Counsel’s complaint allegations that the required meetings were unlawful. The General Counsel excepted to the ALJ’s decision and requested that the Board overrule Babcock & Wilcox Co., 77 NLRB 577 (1948) and find that an employer violates Section 8(a)(1) of NLRA by “mandating employee attendance at a meeting where it expresses its views concerning unionization.”
Prior Standard
Under Babcock & Wilcox, an employer does not violate the Act by merely requiring employee attendance, during working time, at meetings where the employer lawfully expresses its views on unionization pursuant to Section 8(c) of the Act. Specifically, Section 8(c) provides that “the expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act . . . if such expression contains no threat of reprisal or force or promise of benefit.” Makes sense, right? Not according to the Board in Amazon.com.
The Board’s Reversal of Babcock & Wilcox
Despite decades of precedent, the Board held that Babcock & Wilcox was “flawed as a matter of statutory policy.” Thus, in overruling Babcock & Wilcox, the Board held that “captive-audience meetings violate Section 8(a)(1) of the Act because they 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, including the right to decide whether, when, and how they will listen to and consider their employer’s views concerning that choice.”
The Board stated that while an employer, under Section 8(c) of the Act, may hold meetings and express its views on unionization to employees, provided there is no threat of reprisal or force or promise of benefit, “Section 8(c) does not license employers to compel employees, on pain of discipline or discharge, to attend meetings where they are forced to listen to the employer’s views, for such compulsion amounts to a ‘threat of reprisal’ and is ‘without the protection of the First Amendment.’”
So, What Now?
A “safe harbor.” The Board provided the framework of what it considers a safe harbor for an employer wishing to exercise their Section 8(c) rights to lawfully share its views about unionization with its employees. The Board held that employers wishing to shield themselves from liability must “reasonably in advance of the meeting,” inform the employees that:
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- The employer intends to express its views on unionization at a meeting at which attendance is voluntary;
- Employees will not be subject to discipline, discharge, or other adverse consequences for failing to attend the meeting or for leaving the meeting; and
- The employer will not keep records of which employees attend, fail to attend, or leave the meeting.
When Is an Employer Meeting Considered Compulsory?
The Board stated that “an employer will be found to have compelled attendance at a meeting concerning the employer’s union views 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.” Thus, “an express order from a supervisor, manager, or other agent of the employer to attend such a meeting is sufficient to find a violation of the Act and “attendance at a meeting that is included on employees’ work schedules, as communicated by a supervisor, manager, or other agent of the employer, will be considered to be compelled.”
Application of the Board’s Decision
Rightfully, the Board’s decision will be applied prospectively only, as employers across the country have reasonably relied on the fair, common sense Babcock & Wilcox standard for decades.
What Should Employers Do Now?
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- Yes, this is yet another sucker punch to employers who, until now, could have lawfully required employee attendance during working time at meetings where the employer shares its views on unionization. However, one perspective questions whether captive audience meetings are an effective tool in today’s social and workplace climate, where many minds are already made-up on most subjects and those who are undecided may be turned off to their employer’s perspective if they believe they are being “compelled” to listen without any self-determination. Perhaps this method of communicating the employer’s values and perspective is not as effective as newer, more creative ways of sharing information and views with employee groups. On the other hand, this decision coupled with the Board’s decision in Siren Retail Corp. d/b/a Starbucks, 373 NLRB No. 135 (2024), which significantly restricts what employers may communicate during organizing campaigns about the impact of unionization on employee-management relationships, is a monumental shift in this area of law. The swiftness with which this Board has swept away many decades of common-sense precedent in less than a month is concerning to employers and is likely indicative of what employers should anticipate at least through the first quarter of 2025.
- It is likely that a new Board under the incoming administration will overrule this decision and return to Babcock & Wilcox. However, that will not be overnight and will likely be fraught with disputes, unfair labor practice charges, and litigation in the meantime, not to mention the potential for Cemex bargaining orders. Thus, along the lines of the cardinal rule in labor relations, “comply now, grieve later.” It is too costly in time, resources, and reputation to flout the law.
- In consultation with experienced traditional labor counsel who understands your business and your employee population, consider strategically and lawfully sharing your views by other means that lawfully and effectively engage your employees as well as train your supervisors and those with authority to communicate on your company’s behalf.
Remember, effective employee and labor relations is an everyday endeavor, which requires regular communication and engagement with employees to build and maintain trust and open dialogue in the workplace all the times, not just when a union campaign begins. With this foundation in place, many employees will welcome the opportunity to hear the employer’s perspective on many subjects, including unionization.
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