NLRB Bans Mandatory ‘Captive Audience’ Meetings

Mandatory employer meetings about companies’ positions on unions violate the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) ruled on Nov. 13. The NLRB overruled a decision (Babcock & Wilcox Co.) that’s been in place 76 years but said its recent holding (Amazon.com Services LLC) applies only prospectively. Voluntary meetings with workers to share employer views on unionization are lawful within certain parameters, the NLRB determined in the Amazon case. Marvin Kaplan, the sole Republican on the board, dissented from the decision, calling it contrary to the NLRA and unconstitutional. 

The board articulated several reasons why mandatory captive audience meetings were deemed to interfere with employees’ rights under the act. 

First, the NLRB determined that such meetings interfere with an employee’s right under the NLRA to freely decide whether, when, and how to participate in a debate concerning union representation.

Second, captive audience meetings provide a mechanism for an employer to unlawfully observe and surveil employees as it addresses the exercise of employees’ NLRA rights, according to the NLRB. 

Third, the board determined that an employer’s ability to compel attendance at such meetings on pain of discipline or discharge lends a coercive character to the message regarding unionization.

The board’s “attempt to ban so-called captive-audience speeches harkens back to an earlier era when the board sought to impose on employers a policy of strict neutrality regarding unionization. This flagrantly unconstitutional overreach was decisively rejected by the Supreme Court as a violation of the First Amendment guarantee of freedom of speech,” Kaplan wrote in his dissent.

Mary Kate Paradis, an Amazon spokesperson, stated: “This decision ignores over 75 years of precedent, contradicts the express language of the NLRA, and violates the First Amendment. It’s wrong on the facts and the law, and we intend to appeal. Meetings like this are held by many companies because the decision about whether or not to join a union is an important one, and employees deserve to understand the facts so they can make an informed choice.”

Courts will likely be critical of the NLRB’s doctrinal shift, said Rob Boonin, an attorney with Dykema in Ann Arbor, Mich. “The ruling should be vulnerable to a reversal on both statutory and constitutional grounds,” he said. “Employees attend meetings all the time, and there’s no reason that meetings on unions should be treated differently so long as no threats are made during the meetings.”

We’ve gathered articles on the news from SHRM and other outlets.

When Companies May Hold Voluntary Meetings on Unions

In its recent ruling, the NLRB clarified that an employer may lawfully hold meetings with workers to share its views on unionization so long as workers are provided reasonable advance notice of:

• The subject of any such meeting.
• Attendance being voluntary with no adverse consequences for failure to attend.
• The fact that no attendance records of the meeting will be kept.

(NLRB)

Background on Case

The NLRB’s recent decision arose following a complaint over Amazon’s conduct before a successful union election in 2022 at a Staten Island, N.Y., warehouse. The company held numerous meetings there and at another location to discourage workers from supporting a union. 

Whether the labor board ruling will survive under President-elect Donald Trump remains unclear. Labor experts predict a shift away from the pro-union stance taken by the NLRB during the Biden administration, which could potentially reverse some decisions.

(The New York Times)

NLRB General Counsel Spearheaded Change

In 2022, NLRB General Counsel Jennifer Abruzzo announced in a memo that she would ask the board to find mandatory captive audience meetings unlawful. 

Legal experts expect Trump to immediately fire Abruzzo. In 2021, President Joe Biden immediately removed former NLRB General Counsel Peter Robb, who was a Trump appointee. 

 “Abruzzo plans to continue to robustly enforce the National Labor Relations Act and govern labor management relations during the remainder of her term,” NLRB spokesperson Kayla Blado said.

(SHRM and Bloomberg Law)

Some States Prohibit Mandatory Captive Audience Meetings

Several states, including California and Illinois, have banned mandatory attendance at captive audience meetings. Connecticut, Maine, Minnesota, New York, Oregon, Vermont, and Washington have made it illegal for employers to require attendance at meetings on employers’ arguments against unions. New York made mandatory captive audience meetings illegal in 2023.

SHRM has opposed state efforts like this. State bans on captive audience meetings have been challenged in court as infringements on employer First Amendment rights.

(SHRM and The National Law Review)