NLRB Finds Captive Audience Meetings Illegal

By Martin D. Kappenman and David E. Goldman - Peters & Kappenman, P.A.

November 14, 2024

Captive Audience Meetings Found to Be Illegal by NLRB

Relying on Babcock & Wilcox Co., 77 NLRB 577 (1948), employers have long been using so called “captive audience meetings” to express their view to employees regarding unionization. Employers have been able to compel employees, with the threat of discipline or discharge, to attend such meetings. However, in a recent decision involving Amazon.com, Inc., the Board has overruled Babcock & Wilcox. The Board found that, “captive-audience meetings violate [the National Labor Relations 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, including the right to decide whether, when, and how they will listen to and consider their employer’s views concerning that choice.”

Employers may still express their views regarding unionization in a work meeting as long as the employer informs the employees in advance of the meeting 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.

Election Ramifications

While the Board may continue under Democrat control until 2026, the incoming Trump administration will likely make major changes to the NLRB. This may include firing the current General Counsel and appointing a new General Counsel as soon as inauguration day.  This new General Counsel would probably take a more pro-employer position than the current General Counsel. How a Trump appointed General Counsel would affect any appeal of the Board’s decision regarding captive audience meetings remains to be seen.

Minnesota’s Recent Captive Audience Ban

Minnesota has also recently banned captive audience meetings. Pursuant to Minn. Stat. 181.531, Minnesota employers may not discharge, discipline, or otherwise penalize or threaten to discharge, discipline, or otherwise penalize or take any adverse employment action against an employee: (1) for declining to attend or participate in an employer-sponsored meeting or for declining to attend or participate in communications from the employer if the communication is to communicate the opinion of the employer about religious or political matters; (2) as a means of inducing an employee to participate in or attend a meeting described in clause (1); or (3) because the employee makes a good faith report or complaint of a violation or suspected violation of this law.

Political matters are defined as, “matters relating to elections for political office, political parties, proposals to change legislation, proposals to change regulations, proposals to change public policy, and the decision to join or support any political party or political, civic, community, fraternal, or labor organization.” Further, religious matters are defined as, “matters relating to religious belief, affiliation, and practice and the decision to join or support any religious organization or association.”

Legal Challenges

It should be noted the Minnesota law faces legal challenges.  In February, business groups and an employer filed a complaint challenging the law. That complaint has already survived a motion to dismiss, which is currently on appeal with the Eighth Circuit.

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