On November 13, 2024, the National Labor Relations Board (“NLRB” or “Board”) overturned 76 years of precedent and banned mandatory employee meetings nationwide as a potential management response to unionization efforts by employees. Based on this ruling, an employer infringes upon employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”) when it requires employees to attend so-called “captive-audience” meetings.
The Board’s decision in Amazon.com Services LLC addressed a series of mandatory “captive-audience” meetings hosted by Amazon during a union organization campaign in its Staten Island, New York facility. During these meetings, Amazon expressed its opposition to unionization efforts. The Board held that such mandatory meetings are an “extraordinary exercise and demonstration of employer power over employees” and prohibited the long-standing practice.
Section 7 of the NLRA provides employees with the right to self-organization including the rights to form, join, or assist labor unions. It additionally provides the right to refrain from such activities. The Board held that “captive-audience” meetings infringed on employees’ rights by coercing employees to listen to the employer’s position on unionization, in violation of Section 8(a)(1), which prohibits employers from interfering, restraining, or coercing employees in the exercise of rights guaranteed under Section 7. The Board further evaluated the text of Section 8(c) and concluded that an employer may not compel employees to listen to its views on unionization. The decision expressly overruled a foundational labor law decision, Babcock & Wilcox Co., 77 NLRB 577 (1948). Under Amazon.com Services LLC, an employer may only lawfully express its views on unionization to employees if there is no threat of reprisal or force. To avoid a violation of the NLRA under this decision, an employer should notify its employees of the subject of the meeting, state that attendance is voluntary, and reinforce that employees will not be subject to discipline for failure to attend.
The Board’s lone Republican member, Marvin Kaplan, dissented from the ruling. He argued that decisions applying the First Amendment make clear that the Board lacks the authority to prohibit captive-audience speeches. Kaplan further claimed this decision is directly and irreconcilably at odds with the First Amendment’s guarantee of free speech. Not only is the majority’s ruling at odds with the U.S. Constitution, according to Kaplan, but captive-audience meetings do not violate Section 7 of the NLRA because these meetings do not actually infringe on employees’ rights to form, join, or assist unions. Kaplan further argued that Section 8(c) expressly permits employers to freely communicate to employees – including in captive-audience meetings – so long as there is no threat of reprisal or force or promise of benefit.
While the present Board’s decision in Amazon.com Services LLC will be observed and enforced by that Board for the time being, this decision is likely to be sharply contested on appeal or overturned by a future Republican-led Board. Amazon will likely appeal the Board’s decision to the U.S. Court of Appeals for the D.C. Circuit or Second Circuit, and perhaps ultimately the Supreme Court of the United States. It is not at all certain that these courts will share this “Biden Board’s” appetite for significant legal change on this topic.
President-Elect Trump is expected to immediately appoint a Republican General Counsel upon taking office and will, eventually, be able to nominate more employer-friendly Board members as the terms of current members expire. While President-Elect Trump may not have the opportunity to nominate a Republican-majority Board until 2026, his appointed Board General Counsel will likely choose to de-prioritize enforcement of this decision in the interim.
Nevertheless, for the time being, employers should use caution and consult with counsel when mandating employee attendance at a work meeting that expresses the employer’s views concerning unionization. Employers should be mindful of the pro-employee makeup of the Board, at least in the short term, and carefully consider whether its actions have a tendency to coerce employees in the exercise of Section 7 rights under the NLRA.
The attorneys in Stoll Keenon Ogden’s Labor, Employment & Employee Benefits practice are able to assist with questions related to the Board’s decision and union organization issues more generally.
Stoll Keenon Ogden’s Labor, Employment & Employee Benefits practice has a proven record of being trusted advisors and effective advocates. We help employers solve their problems through proactive counseling, employee training and, where possible, cost-efficient litigation, including alternative dispute resolution. We know the employment laws thoroughly, and we make it our goal to acquire a comprehensive knowledge of our clients and their business, so we can provide tailored solutions for each of their needs.
