NLRB Overturns 76 Year Old Precedent and Outlaws Employer Captive Audience Meetings

In yet another move to bolster union organizing efforts, the Biden Labor Board on November 13, 2024, overruled a labor law precedent as long-standing as the Cleveland Guardians World Championship drought. Reversing its 1948 decision in Babcock & Wilcox Co., the National Labor Relations Board (NLRB or the "Board") in Amazon.com Services LLC ruled that employer-conducted captive-audience meetings during a union organizing campaign violate federal labor law.

Captive-audience meetings are mandatory meetings held by an employer during working time in which the employer typically urges employees to reject union representation. For 76 years, they have been a staple of employer "vote no" campaigns. Indeed, the Amazon.com decision cited a 2009 study of nearly 1,000 union representation elections, which found that 89% of employers held at least one captive-audience meeting during the campaign, with more than half of employers holding five or more such meetings. Under the Amazon.com ruling, those meetings are now unlawful.

The Board justified casting aside a 76-year-old precedent by first criticizing the 1948 case as being unexplained and not compelled by the National Labor Relations Act (the "Act"). Babcock & Wilcox relied on Section 8(c) of the Act, the "free speech" proviso added to the Act in 1947 by the Taft-Hartley Act, passed by a Republican Congress over President Truman's veto to cure abuses that had emerged since the passage of the Act in 1935. Section 8(c) provides, in part, "that the expressing of any views, argument, or opinion, or the dissemination thereof... shall not constitute, or be evidence of, an unfair labor practice... if such expression contains no threat of reprisal or force or promise of benefit." 29 U.S.C. § 158(c). In Babcock & Wilcox, the employer compelled the attendance of its employees at a meeting where it expressed its anti-union views. The Board referenced the newly enacted Section 8(c) and, with little comment, found the captive-audience meeting was not an unfair labor practice.

Seventy-six years later, the Board undertook to do what it accused the Board of failing to do in 1948: examine the issues presented by captive audience meetings and provide a reasoned explanation for a change in the Board's view. According to the Board, while the NLRB's approach to captive-audience meetings has been fixed for decades, "it has never been fully or persuasively explained." Amazon.com Services, LLC, 373 NLRB No 136, at 12.

The Board began its deep dive into captive-audience meetings by reviewing the fundamentals of the Act. Section 7 of the Act grants to employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection, and shall also have the right to refrain from any or all of such activities." 29 U.S.C. § 157. Those rights are safeguarded by Section 8(a)(1), which makes it unlawful for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7." 29 U.S.C. §158(a)(1).

The Board noted that Section 8(a)(1) exists to protect the privacy and autonomy of employees in their Section 7 rights and prohibits employer activities such as surveilling, interrogating, or polling employees in their exercise of Section 7 rights.

Captive-audience meetings, the Board found, intrude on the protected sphere of employee privacy and autonomy in at least three ways:

1. They impinge on an employee's Section 7 right to choose, free from employer coercion, the degree to which he or she will participate in the debate concerning representation, which is an aspect of the employee's more fundamental right to be let alone with respect to the exercise of rights under the Act;
2. They can readily serve as a mechanism for employers to observe and surveil employees as they address the exercise of employees' Section 7 rights; and
3. Because the employer has compelled employees to attend captive-audience meetings on pain of discipline or discharge, the employer's message in the meeting urging rejection of or support for the union is reasonably likely to take on a similarly coercive character. Further, the employer's ability to require attendance at the meeting demonstrates the employer's economic power over the employees and reasonably tends to inhibit them from acting freely.

Amazon.com Services, LLC, 373 NLRB No 136, at 13-14. For those reasons, the Board concluded that captive-audience meetings violate Section 8(a)(1).

The Board next examined captive-audience meetings under Section 8(c), the free speech proviso. Taking pains to point out that Section 8(c) is alive and well, the Board stated, "The plain meaning of Section 8(c)'s statutory text is that employers and unions may noncoercively express their views concerning unionization and that the substance of those views cannot be held against them." Id. at 12. The Board summarized its view of 8(c) as follows: "Employers may express their views on unionization, but they may not compel employees to listen to them." Id. at 15.

The Board held that an employer violates Section 8(a)(1) if it requires employees to attend a meeting at which the employer expresses its views on unionization. Moreover, prohibiting such meetings does not offend employer free speech rights under Section 8(c) and the First Amendment. The decision notes that requiring employees to attend such meetings is unlawful regardless of whether the employer expresses support for or opposition to unionization. Id. at 19.

Recognizing that its decision was upsetting decades-long reliance on the 1948 precedent, the Board ruled that the new dictate would apply only prospectively, that is, in future cases, and not retrospectively, as is often the case with Board decisions. Thus, in this case, Amazon.com's captive-audience meetings were found not to violate the Act, although the Board found other acts by Amazon.com that did.

The Board concluded by explaining that voluntary meetings held in the workplace during working time do not violate the Act. Stating its intent to provide "clear guidance" for employers, the Board created a safe harbor for employers who desire to express their views on unionization in a workplace meeting with employees. According to the Board, "an employer will not be found to have violated Section 8(a)(1) if, reasonably in advance of the meeting, it informs employees that:

1. The employer intends to express its views on unionization at a meeting at which attendance is voluntary;
2. Employees will not be subject to discipline, discharge, or other adverse consequences for failing to attend the meeting or for leaving the meeting; and
3. The employer will not keep records of which employees attend, fail to attend, or leave the meeting.

An employer may avail itself of this "safe harbor" by giving employees these assurances." Id. at 19. The employer must then follow through on those assurances.

The Board's safe harbor raises as many questions as it purports to answer and seems out of touch with the realities of the shop floor. For example, in a manufacturing department where a team of workers is needed to make product, the absence of some number of employees to attend the voluntary meeting is necessarily going to be noticed by and known to the supervisor; likewise, those who don't attend the voluntary meeting will be quite obvious to the supervisor. Supervisors, of course, are agents of the employer, such that even if no list is created, the "go/no go" decisions of employees and the natural inferences as to support or opposition to the union that may be drawn from same, will be evident. Will simple observation by supervisors of who attends and who doesn't become the basis for unfair labor practice charges? Thus, it is unclear what effect the Board's safe harbor will have.

Equally unclear is whether and how long the rule announced in Amazon.com Services LLC will survive the upcoming change in administration. The incoming Trump Administration is expected to reverse a number of the rules and decisions of the past four years, although the Trump Board's ability to do so may initially be limited by the remaining unexpired terms of the Board's Democratic members.

In summary, the Amazon.com Services LLC decision removes from employers' toolkits a tool that countless employers have found helpful for over seven decades. That decision is of a piece with multiple decisions and rules issued by the current Board designed to ease the path to union organizing in the private sector.

If you have any questions about this or other recent labor law developments, please contact any of the Labor & Employment lawyers at Calfee.