In what appears to be last ditch effort to push through the union friendly agenda of current General Counsel Jennifer Abruzzo, the National Labor Relations Board (NLRB or Board) held in a ruling issued November 13, 2024, that employers may no longer require employees attend educational meetings during an organizing campaign.
The cases, Amazon.com Services LLC and Dana Joann Miller and Amazon Labor Union, NLRB Cases 29–CA–280153, 29–CA–286577, 29–CA–287614, 29–CA–290880, 29–CA–292392, and 29–CA–295663, involved the Employer’s use of “captive audience meetings”, meetings held by the employer to educate employees and often express its views concerning unionization, and statements made by managers at those meetings during organization efforts at two of its locations in Staten Island, New York.
On January 30, 2023, an Administrative Law Judge issued a decision finding that Amazon had violated Section 8(a)(1) of the Act by threatening employees that it would withhold benefits during the mandatory meetings. The ALJ also found that the Respondent violated Section 8(a)(1) by discriminatorily enforcing its solicitation policy. However, applying the Board’s decision in Babcock & Wilcox Co., 77 NLRB 577 (1948), the ALJ found that requiring employees to attend the meetings or face discipline was lawful. The General Counsel appealed that ALJ decision.
In its November 13 decision, the Board overturned Babcock, and more than 70 years of precedent, and found that an employer violates Section 8(a)(1) of the Act if it requires employees to attend a meeting at which the employer expresses its views on unionization. Importantly, requiring employees to attend such meetings is unlawful regardless of whether the employer expresses support for or opposition to unionization. Such captive-audience meetings violate Section 8(a)(1) and prohibiting them does not infringe employer speech protected by Section 8(c) and the First Amendment. The violation turns on the employer’s use of its power to compel employees to attend such a meeting. Thus, a voluntary meeting, held in the workplace on work time, does not violate the Act.
The Board went on to provide what it describes as clear guidance for employers who wish to hold captive audience meetings during an organizing campaign. It stated that 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.
What does this mean for employers?
As stated in our previous alert, for now, the ruling makes unlawful what was once viewed as a staple “tool in the toolbox” for employers facing an organizing campaign. Employers have a very short window of time to communicate with employees during an organizing campaign and captive audience meetings were an effective way to connect with its workforce.
This decision was a key piece of General Counsel Abruzzo’s 2021 Agenda and provides for additional uncertainty as the Board’s direction inevitably shifts with a Trump Administration. For at least the next couple of months, Employers faced with an organizing campaign must consider its response in light of this changed landscape and counsel should be sought with respect to structure and substances of all meetings held by managers with employees in the proposed bargaining unit.
Michael Best stands ready and able to assist. If you have any questions about this ruling, please contact our team.