From precedent to policy: NLRB's new captive audience meeting ban

Employers can no longer require employees to attend meetings at which the employer expresses its views on unionization thanks to the National Labor Relations Board's ("NLRB") decision in Amazon.com Services LLC, 373 NLRB 136 (November 13, 2024). Under the ruling, merely holding a mandatory meeting--apart from whether the content is lawful--violates Section 8(a)(1) of the National Labor Relations Act ("NLRA"). These meetings, derogatorily referred to as "captive audience meetings," have been one of employers' most common tools against labor organizing, protected by legal precedent for over 75 years. Now, the NLRB holds that, going forward, such meetings "interfere with employee rights under Section 7 of the NLRA to freely decide whether, when, and how to participate in a debate concerning union representation, or refrain from doing so."

Background

The case spawned from a union organizing campaign at two Amazon fulfillment centers that prompted the company to campaign against unionization. Amazon held meetings to oppose union representation, where managers notified employees of their schedules, escorted them to meetings, and scanned ID badges to track attendance. The NLRB issued a complaint. Most facts were not disputed, and citing Babcock & Wilcox, 77 NLRB 577 (1948), the administrative law judge dismissed claims that these meetings were unlawful. On appeal, in a split decision, the Democrat majority-led NLRB overruled Babcock & Wilcox.

The decision should not come as a complete surprise. In April 2022, NLRB General Counsel Abruzzo issued a memorandum announcing her plans to beseech the NLRB to ban all mandatory employer meetings on unionization.

The discarded standard

In 1947, Congress amended the NLRA, adding Section 8(c), which states that an employer can express its views on unionization to employees, provided that the expression does not contain "threat of reprisal or force or promise of benefit." 29 U.S.C. §158(c). The following year, in Babcock & Wilcox, the NLRB held that employers can lawfully require their employees "to attend a meeting during which it expressed its antiunion views," relying on the language of Section 8(c) and its legislative history.

Since Babcock & Wilcox, employers have been able to hold mandatory meetings to express views on unionization. The sole exception has been the 24-hour period preceding a representation election, during which both unions and employers are prohibited from holding such meetings to prevent undue influence on employees. See Peerless Plywood Co., 107 NLRB 427 (1953).

The decision

In overruling Babcock & Wilcock, the NLRB found mandatory 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 rights to freely decide whether or not to unionize. 29 U.S.C. §§157; 158(a)(1). The decision was rooted in 3 main concerns:

"Captive-audience" meetings inhibit employees' right to freely choose the degree to which they will participate in a debate about union representation.

"Captive-audience" meetings provide "a mechanism for employers to observe and surveil employees as the exercise of their Section 7 rights is addressed."

Because employers can mandate workers' attendance at such meetings "on pain of discipline or discharge," the employer's anti-union message at the meeting would likely be similarly coercive. The NLRB focused on employers' "economic power" over employees, which it found "reasonably tends to inhibit [employees] from acting freely."

According to the NLRB, an employer will be found to have unlawfully compelled attendance if, under all the circumstances, employees could reasonably conclude: (1) attendance at the meeting is required as part of their job duties; or (2) their failure to attend or remain at the meeting could subject them to discharge, discipline, or other adverse consequence.

The NLRB established a safe harbor from liability for employers who wish to express their views in workplace meetings with employees during work hours. The NLRB will not find a violation if, reasonably in advance of the meeting, the employer informs employees of the following:

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.

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

The NLRB also departed from its usual standard of applying new case law retroactively, which perhaps indicates the seriousness of the change.

The ban's ambiguous scope

The Amazon decision leaves many open questions. It remains to be seen what constitutes a "captive audience meeting." Arguably, nearly all workplace meetings are mandatory. Would it be unlawful if an employee asks a question about unions during a mandatory meeting on another topic? What if the employer never mentions the word "union" but expresses its desire to deal with employees without interference? While GC Abruzzo asked the NLRB to rule on other types of meetings, such as unscheduled one-on-one encounters between an agent of the employer and the employee, it declined to address that scenario or others not presented in the case.

Uncertain future

The ruling may be relatively short-lived. The opinion will likely be appealed to a federal circuit court. The sudden ban after decades of such meetings being lawful raises serious questions as to what changed besides the make-up of the NLRB. Over the past 25 years, there has been a variety of ever-changing precedents coinciding with changes in administration.

In addition, the incoming presidential administration will appoint its own members of the NLRB who may look to reverse the precedent and return to the historically employer-friendly standard. Such a shift may take some time. Even if the president-elect immediately dismisses GC Abruzzo, the NLRB's membership will not be overturned that quickly. Board members serve 5-year terms. President Biden already nominated one to serve another term and another to fill the currently vacant seat. The remaining members have a significant amount of time left in their terms. Thus, the Democratic majority is likely to continue until August 2026. Until then, we can expect the Amazon decision to persist.

Sehreen Ladak and Ariel Brotman are associate attorneys at Proskauer Rose LLP.