The NLRB Overturns Decades-Old Precedent by Banning Captive-Audience Meetings

By Chad M. Horton - Shawe Rosenthal LLP

November 25, 2024

The National Labor Relations Board (NLRB or Board) made the inevitable official when it recently held that employee attendance at employer-mandated meetings where employers express their views on potential unionization– often referred to as “captive-audience meetings” – violate the National Labor Relations Act. The decision overturns a 1948 Board decision and renders unlawful conduct that had been deemed lawful by the Board for more than 75 years.

The Board’s 1948 decision in Babcock & Wilcox held that captive-audience meetings were lawful. There, the Board relied on Section 8(c) of the NLRA, which permits employers to express views, arguments, or opinions provided that such are not accompanied by threats of reprisals or promises of benefits. Since that decision, employers have exercised their rights to hold mandatory meetings with employees in which the employer expresses its views and opinions regarding unionization. (Note: Such meetings have been and continue to be unlawful within 24 hours of the start of an election.)

But in Amazon.com Services LLC, the Board overturned this well-established, decades-old precedent. The Board majority asserted that captive-audience meetings infringe upon employee rights protected by Section 7 of the NLRA. First, the Board found that mandating such meetings interfere with an employee’s right to decide whether to engage in protected activity or refrain from doing so. Next, the Board determined that these meetings allow an employer to observe and surveil the employees it is addressing. Third, by compelling attendance at captive-audience meetings on pain of discipline, an employer presents a coercive message regarding unionization, and demonstrates the employer’s “economic power over employees.” The Board will find that employee attendance at a such meetings was compelled if (1) employees could reasonably conclude that meeting attendance is required as part of their job duties, or (2) employees could reasonably conclude that their failure to attend or remain at the meeting could subject them to discipline or any other adverse consequence.

Voluntary meetings, however, will remain lawful. The Board set forth specific guidelines that will provide an employer a “safe harbor” and under which it will find that a meeting in which an employer expresses its views and opinions on unionization is voluntary. Specifically, an employer must notify employees of the following:

  1.  The employer intends to express its views on unionization at a meeting at which employee attendance is voluntary;
  2.  Employees will not be subject to discipline or adverse consequences for failing to attend or leaving the meeting; and
  3.  The employer will not keep attendance records of the meeting.

If an employer provides these assurances – and adheres to the assurances – the Board will find that the meeting was not mandatory.  The Board clarified that where an employer fails to provide these assurances, it does not automatically render the meeting unlawful – that will depend on the circumstances.

In light of the decades-old precedent permitting such meetings, and employers’ understandable reliance on that precedent, the Board determined that its holding will only be applied prospectively. How long this decision remains Board law, however, is a separate question. With the election of Donald Trump, Republicans will eventually constitute a majority of the Board. This decision will likely be an early target for reversal.

Employer Takeaways

For as long as this decision remains Board law, an employer may still hold meetings with employees in order to express its views and opinions on unionization. But such meetings must be preceded by notifying employees of the subject matter of the meeting, that the meeting is voluntary, that employees may freely leave the meeting or refuse to attend without concern of adverse consequences, and that attendance will not be kept by the employer. And, of course, the employer must follow through on those assurances.

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