The National Labor Relations Board Implements Nationwide Ban on Captive Audience Meetings
The National Labor Relations Board Implements Nationwide Ban on Captive Audience Meetings
Mayowa Gbenro, Associate
On November 13, 2024, the National Labor Relations Board (“NLRB” or the “Board”) issued a landmark decision in Amazon.com Services LLC (“Amazon”)[1]overturning decades-long precedent to hold that employers violate Section 8(a)(1) of the National Labor Relations Act (“NLRA” or the “Act”) when they require employees to attend captive-audience meetings (or else face discipline or discharge) in which the employer expresses its views on unionization. Whether the Amazon decision will remain viable once President-elect Trump returns to office remains to be seen, but this decision presents yet another sea change in Board precedent regarding employer-employee communications under the Act.[2]
The Amazon Decision: What Changed?
For 75 years, the NLRB adhered to the principles set in Babcock & Wilcox Co.,[3] allowing employers to mandate employee attendance at meetings where employers could express their views on unionization, provided that the employers refrained from making threats, promises, or other impermissible speech that could interfere with employee rights under Section 7 of the Act. The NLRB expressly overturned this precedent in Amazon, holding that mandatory attendance at captive audience meetings violates employees’ rights under the Act.
The Board reasoned that such meetings inherently coerce employees into listening to employer opinions about unions, which interferes with employee rights to freely decide whether to support or oppose unionization and whether to debate the merits of unionization with others or refrain from doing so. However, under Amazon, an employer may still hold meetings to discuss its opinions on unionization, but only if the employer provides advance notice of 1) the subject matter of any such meeting, i.e. that the employer intends to express its views on unionization; 2) the fact that meeting attendance is purely voluntary and no adverse consequences will result from a failure to attend, and; 3) the fact that no attendance records of the meeting will be kept.
Importantly, while the Board typically applies new policies and standards retroactively to all pending cases, the Board declined to do so with its new standard in Amazon, reasoning that doing so would result in injustice to employers who have engaged in conduct that was clearly lawful under Babcock & Wilcox at the time it was undertaken. Moreover, the Amazon decision has no effect on other forms of lawful, non-coercive employer communications regarding unionization, such as impromptu and unscheduled meetings and discussions between employers and employees regarding unionization that are prompted by the employee.
Colorado's Governor Vetoed the Worker Freedom Act
Earlier this year, Colorado’s General Assembly presented Governor Polis with the Worker Freedom Act (HB 24-1260), which attempted to broadly forbid any captive audience meetings discussing either “religious matters” or “political matters,” with political matters including matters relating to the decision to join or support labor organizations.[4]
However, on May 17, 2024, Governor Polis vetoed the Worker Freedom Act, reasoning that its scope as to “religious” and “political” matters was too broad to address the problem of captive audience meetings in the unionization context and would have imposed an impossible task on employers to determine whether discussing either politics or religion was necessary for employees to perform their job duties.
Employer Considerations
In deciding Amazon, the NLRB established a nationwide standard prohibiting the use of captive audience meetings discussing unionization in the workplace. While the decision only applies prospectively, Colorado employers facing union election campaigns must take care to ensure that any employer-employee discussions or meetings regarding the subject of unionization remain completely voluntary and without reprisal, and they should refrain from tracking any attendance at such meetings (if any). Of course, whether Amazon remains good law in the foreseeable future remains to be seen given the anticipated changes to the Board’s makeup under the Trump administration. Campbell Litigation will continue monitoring further developments on this issue.
[1] 373 NLRB No. 136 (Nov. 13, 2024)
[2] See, e.g. https://www.rockymountainemployersblog.com/blog/2024/11/14/nlrb-overturns-40-year-old-precedent-regarding-what-employers-may-permissibly-say-to-employees-during-union-campaigns-regarding-the-effects-of-potential-unionization, discussing the Board’s recent overruling of Tri-Cast, Inc. and its permissive view of employer speech regarding the possible effects and impacts unionization may have on the employer/employee dynamic.
[3] 77 NLRB 577 (1948)
[4] The Rocky Mountain Employer discussed the now-vetoed Worker Freedom Act on March 14, 2024. See https://www.rockymountainemployersblog.com/blog/2024/3/14/general-assembly-takes-aim-at-captive-audience-meetings-in-the-workplace-via-hb-24-1260.