NLRB Continues Its Historic Run of Overturning Long-Standing Precedent in Its New Captive Audience Ban

December 11, 2024

Last month, the National Labor Relations Board issued its decision in Amazon.com Services, LLC, Case 29-CA-280153, and effectuated the General Counsel and Biden Administration’s goal of doing away with captive audience meetings. In doing so, the Board overturned its landmark Babcock & Wilcox decision, a 76-year-old precedent that affirmed employers’ First Amendment right to communicate with their employees through captive audience meetings. This decision comes just days after the Biden Board overturned a nearly 40-year-old precedent that had given employers protection in speaking with their employees regarding potential changes in the way they will be able to communicate with each other if the employees vote to unionize.

Captive Audience Meetings

Captive audience meetings are commonly utilized by employers facing union organizing campaigns. Through them, an employer could require its employees to attend a meeting, during working hours, so it could express its views on unionization. This employer right was derived from Section 8(c) of the National Labor Relations Act, which allows employers to express “any views, argument, or opinion” to its employees so long as the expression does not contain any threat of reprisal or force or promise of benefit.

Cause and Effect of the NLRB’s Decision

The Board has had captive audience meetings in its sights since 2022, when General Counsel Jennifer Abruzzo issued her memorandum (GC 22-04) criticizing the meetings and calling for the Board to find them unlawful. Following the General Counsel’s lead, the Board found that captive audience meetings violate Section 8(a)(1) of the Act because they have a reasonable tendency to interfere with and coerce employees in the exercise of their Section 7 right to freely decide whether or not to unionize. The Board focused on the mandatory nature of the meetings and found that it infringed on employees’ right to decide whether, when, and how they will listen to and consider their employer’s views concerning the choice to unionize.

While the Act protects employers in speaking and expressing their views on unionization to their employees, so long as they do not contain any threat of reprisal or force or promise of benefit, the Board found that requiring employees to attend the meeting explicitly contained a threat of reprisal – namely discipline if the employees skipped the meeting. As such, the Board created a “safe harbor” for employers who wish to speak to their employees about unionization. To be protected, employers must (1) give employees advance notice that they intend to speak about unionization and (2) make it clear that (a) the meeting is voluntary, (b) workers can leave the meeting without adverse consequences, and (c) attendance will not be recorded.

The Board decided to apply this restriction prospectively considering that employers have relied on their protected right to hold these meetings for the last 76 years.

What It Means for Employers

This decision is a major loss for employers, as the right to utilize captive audience meetings and express viewpoints on unionization has been an essential tool for employers facing union organizing campaigns. While employers may still hold voluntary meetings regarding their views, this significantly hampers the effectiveness of the meetings because employers can no longer ensure that their message reaches their entire workforce.

In August, Illinois enacted the Worker Freedom of Speech Act, which similarly prohibited employers from holding captive audience meetings. At that time, it was believed the law may be struck down as a result of its preemption by federal law. With the Board’s new decision, this argument is foreclosed.

It is not clear how long this decision will last, considering the impending inauguration of President Donald Trump and his assumed employer-friendly changes to the makeup of the Board. This is just one of over 20 precedent-setting decisions that the employee-friendly Biden Board has issued, and it is unclear how many more it will push through before the administration changes in January. As such, it is increasingly important for employers to familiarize themselves with these new changes and stay up to date on the law. In light of the NLRB’s Cemex decision, effectively communicating with employees can make or break an employer’s efforts during a union organizing campaign.

If your company is faced with a unionizing campaign or you have questions regarding how you can lawfully communicate with your employees, please contact Gaetano Urgo at gurgo@dcamplaw.com or by telephone at (312) 995-7128.