In mid-November, the National Labor Relations Board (NLRB) overturned 75 years of precedent and found that captive-audience meetings violate the National Labor Relations Act (NLRA) in its Amazon.com Services LLC decision.
Prior Precedent Allowing Captive-Audience Meetings
Captive-audience meetings are employer-required mandatory meetings during work time where the employer expresses its views about unionization. Under prior precedent, such meetings were lawful if the employer did not threaten, interrogate, punish, or promise benefits to employees regarding these meetings.
The NLRB set this standard in the seminal case of Babcock v. Wilcox Co. In Babcock, the NLRB held that the text and history of Section 8(c) of the NLRA allowed employers to hold captive-audience meetings without violating Section 8(a)(1) of the NLRA.
Proponents of this holding have long argued a contrary ruling would violate free speech principles protected by both the United States Constitution and Section 8(c) of the NLRA.
Challenges to Prior Precedent
Opponents of the Babcock rule have argued that mandatory meetings coerce employees thereby impinging on their right to organize under Section 7 of the NLRA.
Criticism of the Babcock rule reached its peak in April 2022 when NLRB General Counsel Jennifer A. Abruzzo issued general counsel Memorandum GC 22-04 (Memo 22-04).
In Memo 22-04, Abruzzo announced her intent to ask the NLRB to find captive-audience meetings unlawful. Abruzzo explained that courts have long held that the NLRA protects employee rights to listen to, or not listen to, employer messaging about unionization. As Abruzzo explained, captive-audience meetings impinged on employee rights under the NLRA not to listen to the employer’s views regarding unionization.
The view advanced by Abruzzo has been adopted in various states already. Alaska, California, Connecticut, Hawaii, Illinois, Maine, Minnesota, New Jersey, New York, Oregon, Vermont, and Washington have, or will soon have, captive-audience meeting bans in place. These state laws generally prohibit employers from punishing, or threatening to punish, employees who do not attend meetings where labor organizing, among other things, is discussed.
Litigation has been filed against some of these state laws challenging them on preemption grounds to mixed success. Despite the challenges, more states have pending bills seeking to ban captive-audience meetings. The trend at the state level may subside as opponents of captive-audience meetings notched a complete victory in the Amazon Services decision.
The New Rule Banning Captive-Audience Meetings
In Amazon Services, employees formed the Amazon Labor Union and began organization efforts at two facilities in New York. The employer responded by holding mandatory meetings where it explained its views on unionization. Following these meetings, the employees filed various unfair labor practice charges. The Administrative Law Judge hearing them initially determined the captive meetings were lawful under the Babcock decision.
As she forecast in Memo 22-04, Abruzzo filed exceptions to the ALJ’s ruling and argued that the NLRB wrongly decided Babcock. Abruzzo sought a holding that an employer violates Section 8(a)(1) of the NLRA by mandating employee attendance at a meeting where it expresses its views about unionization. The NLRB agreed and overruled Babcock entirely.
The NLRB determined that captive-audience meetings violate “Section 8(a)(1) 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 NLRB determined that forcing attendance at meetings where the employer will provide its views on unionization “on pain of discipline or discharge” violates Section 8(c) as it amounts to a “threat of reprisal,” which is not protected by the First Amendment.
The NLRB clarified in its opinion that employers may still convey their views on unionization in non-mandatory settings. To guide employers going forward the NLRB established a “safe harbor” so employers know how to convey views regarding unionization lawfully. To meet the safe harbor, an employer must, reasonably before the meeting, inform employees that:
- 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.
An employer that gives these assurances, and then follows through with them, may convey its views on unionization to employees lawfully. The NLRB clarified that failure to give the assurances will not necessarily violate the NLRA as the specific facts of the meeting and communications given at the meeting will control whether its meeting was captive.
Complying With the New Rule Going Forward
After Amazon Services, captive-audience meetings violate the NLRA. That said, the controversy surrounding such meetings is likely not going away.
The dissenting opinion in Amazon Services argued the majority got it wrong as Section 8(c) of the Act states that sharing “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.”
According to the dissent, the express language of Section 8(c) and free speech principles dictate that employers be allowed to convey their views on unionization even at captive-audience meetings. The dissent derided the notion that requiring employees to attend meetings violated the NLRA as mere attendance does not denote one’s acceptance or rejection of the topics discussed at a meeting.
The dissent argued that bedrock rules prohibiting employers from taking adverse action against employees for advocating for or against a union adequately protect employee rights under the NLRA. To be sure, the majority in Amazon Services considered these points and rejected them, finding that forcing employees to hear the employer’s views on unionization itself violated the protections found within the NLRA.
Time will tell whether the Amazon Services ruling will stand or if the holding in Babcock will return. For now, employers should follow the safe harbor rules set forth in Amazon Services so they can freely express their unionization views without fear of violating the NLRA.
