NLRB Bans Captive-Audience Meetings

On November 13, 2024, in Amazon.com Services LLC, the National Labor Relations Board (the “NLRB”) overruled the longstanding case Babcock & Wilcox Co. to hold that employers violate the National Labor Relations Act (the “NLRA”) when they call “captive-audience meetings”—meetings employers require employees to attend at which the employer expresses views on unionization. 

The NLRB held that captive-audience meetings violate the NLRA because they “have a reasonable tendency to interfere with and coerce employees in the exercise of their Section 7 [NLRA] right to freely decide whether or not to unionize, including the right to decide whether, when, and how they will listen to and consider their employer’s views concerning that choice.”  The NLRB’s ruling was not limited to meetings wherein an employer expresses anti-unionization views.  Instead, the opinion applies to any mandatory meeting on unionization, and stated, “requiring employees to attend such meetings is unlawful regardless of whether the employer expresses support for or opposition to unionization” (emphasis added).

The opinion did, however, create a “safe harbor” for certain types of meetings an employer may hold to express their views on unionization.  Under the safe harbor, an employer may lawfully hold meetings if it informs the employees that (1) the employer intends to express views on unionization at the meeting, (2) attendance is voluntary, (3) there will be no adverse consequences for failing to attend the meeting or for leaving, and (4) the employer will not keep records of attendance at the meeting.

Finally, the NLRB confirmed that the rule will only be applied prospectively, and therefore not to past or currently-pending cases. 

The Amazon decision is consistent with the Biden NLRB’s pro-labor approach and brings federal policy in line with several states which have already limited employer authority to hold captive audience meetings.  With the upcoming Trump administration, it is possible the NLRB may gradually shift back towards a rule more aligned with Babcock.  Nevertheless, even if the NLRB walks back Amazon in the coming years, state laws may still limit employers’ authority to hold these meetings.  Recent bans on captive audience meetings have been passed in New York, Connecticut, Maine, Minnesota, Oregon, Vermont, and Washington. These laws have been repeatedly challenged by trade groups and the US Chamber of Commerce as violations of employers’ free speech rights, including most recently in Connecticut where oral arguments were heard on a summary judgment motion challenging the state ban on November 18, 2024. 

With the upcoming administration change at the federal level, and ongoing litigation and passing of captive audience meeting bans, employers should work with counsel to ensure that they are compliant with applicable laws when calling meetings with employees to discuss union matters. 

The Firm will continue to monitor federal and state action on captive audience meetings. Employers with questions about the framework or other labor practices should contact Jack Culhane at jculhane@fglawllc.com or any attorney at the firm.

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