On November 13, 2024, the National Labor Relations Board issued a decision that overturned a ruling previously in effect for 76 years, Babcock & Wilcox Co., 77 NLRB 577 (1948), in which the Board had held employers were allowed to conduct “captive-audience meetings” during union organizing campaigns.
In Amazon.com Services LLC, NLRB Case No. 29-CA-280153 (https://apps.nlrb.gov/link/document.aspx/09031d4583e96e24), the Democratic members of the Board, with the sole Republican member dissenting, voted to reverse seventy plus years of Board law and make it illegal to require employees, under threat of discipline or discharge, to attend meetings in which the employer expresses it views on unionization.
The Board stated that captive-audience speeches, regardless of whether an employer uses them to express support for or opposition to unionization, violate the protections afforded employees under the National Labor Relations Act to freely choose whether or not to participate in the discussion about unionization, and the decision whether or not to unionize:
The employer’s ability to require attendance at the meeting demonstrates the employer’s economic power over the employees and reasonable tends to inhibit them from acting freely.
[W]hen employers compel employees to attend captive-audience meetings under threat of discipline of discharge, they force them to participate, at least as listeners, in the debate concerning union representation…exercising the power to compel attendance is quintessentially conduct by which employers “interfere with” employees’ exercise of their own Sectin 7 rights. Id. at p. 14.
The Board further explained its action by stating:
An employer can observe employees at these meetings, seeing, among other things, with whom they associate and how they react to what they hear. An employer can silence, or even banish, employees who would express their own views or even just ask questions. It should be clear, then, that a captive-audience meeting is an extraordinary exercise and demonstration of employer power over employees in a context where the Act envisions that employees will be free from such domination. We thus prohibit captive-audience meetings. Id. at p. 12.
While this ruling may have taken a major tool out of an employer’s arsenal during union organizing campaigns, the Board did provide employers with a “safe harbor”:
[A] 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.
Id. at p. 19 (emphasis added).
Although the Board further held that this new standard will only be applied prospectively, the new standard may nevertheless not have a long shelf-life, as it is expected that the new administration will make changes once President Trump is back in office, and likely restore some of the power to employers that they lost under the Biden administration.
If you have questions about the Labor Board’s ruling or captive-audience speeches, or a general labor or employment question, feel free to contact Joel Hlavaty or any member of Frantz Ward’s Labor & Employment Group.