An express “order” from a supervisor, manager or other agent of the employer—including placing a meeting on an employee’s work schedule—is sufficient, but not necessary, to establish unlawful coercion.
On November 13, 2024, the National Labor Relations Board (NLRB) issued a decision in Amazon.com Services LLC, holding prospectively that mandatory captive-audience meetings violate Section 8(a)(1) of the National Labor Relations Act. Overruling 76 years of precedent, the Board has now concluded that, going forward, it will be unlawful for employers to compel employees to attend a meeting where an employer expresses its views for or against unionization.
Brief History
In 1947, Congress passed multiple amendments to the National Labor Relations Act, including the addition of Section 8(c), which provides:
The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice … if such expression contains no threat of reprisal or force or promise of benefit.
The following year, in Babcock & Wilcox, 77 NLRB 577 (1948), the Board found that it was not unlawful for an employer to “compel[] its employees during working hours” to attend a meeting where it expressed antiunion views. In that decision, the Board held that the language and legislative history of Section 8(c) precluded a finding of unfair labor practices under these circumstances. In the 76 years since Babcock & Wilcox, employers have relied on this interpretation of the Act that it is lawful to require employees to attend meetings where employers express their views on unionization. However, General NLRB Counsel Jennifer A. Abruzzo set that case in her sights and pushed for it to be overturned, using her prosecutorial discretion to funnel test cases to the Board that involved mandatory meetings about unionization.
In Amazon.com, the Board agreed with General Counsel Abruzzo’s position that so-called captive-audience meetings violate Section 8(a)(1) of the Act and overturned Babcock & Wilcox.
Decision in Amazon.com
The underlying facts in Amazon.com concerned a union organizing campaign at two Amazon fulfillment centers. Amazon campaigned to try to dissuade employees from supporting the union. This campaign included a series of meetings where the company made statements opposing union representation generally and this union specifically. Managers personally notified employees that they were scheduled to attend the meetings, escorted them to the meetings and scanned their ID badges to digitally record attendance. Pursuant to Babcock & Wilcox, the administrative law judge dismissed the allegations that these meetings were unlawful.
The Board, however, decided to overrule Babcock & Wilcox, concluding that these types of captive-audience meetings are unlawful under Section 8(a)(1). It reasoned that such meetings have a reasonable tendency to interfere with employees’ 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.” With respect to Section 8(c), which provides employers the right to express their views as to unionization so long as there is no threat of reprisal or force or promise of benefit, the Board explained that the act of compelling employees to attend a meeting itself contains a threat of reprisal because employees who do not comply may face discipline.
Under this new precedent, the Board explained that it will find that an employer has unlawfully coerced employees to attend a meeting about unionization if, under all the circumstances, employees could reasonably conclude (i) that meeting attendance was required as part of their job duties or (ii) that their failure to attend or remain at the meeting could subject them to discipline, discharge or other adverse consequences. An express “order” from a supervisor, manager or other agent of the employer—including placing a meeting on an employee’s work schedule—is sufficient, but not necessary, to establish unlawful coercion.
The Board also recognized that employers are not prohibited from holding workplace meetings to express lawful views on unionization in a noncoercive manner. In other words, employers may hold voluntary meetings during paid work time. In that respect, the Board created a “safe harbor” for employers, such that they will not be found to have violated Section 8(a)(1) if, reasonably in advance of the meeting, they inform the employees that:
- The employer intends to express views on unionization at a meeting at which attendance is voluntary;
- Employees will not be subject to discipline, discharge or other adverse consequences for failing to attend the meeting or for leaving the meeting; and
- The employer will not keep records of which employees attend, fail to attend or leave the meeting.
When an employer gives these assurances and follows through on them, it may lawfully hold a meeting with employees where it expresses its views on unionization (so long as its commentary is otherwise noncoercive). The Board clarified that the failure to give such assurances will not itself be a violation of Section 8(a)(1). However, an employer acts at its own peril if it conducts such a meeting without these assurances and the meeting is later found to have been nonvoluntary.
According to the Board, other meetings, such as meetings regarding new safety rules or work processes or any terms or conditions of employment, fall outside the definition of “captive-audience meetings” and do not implicate the same Section 7 concerns. However, this calls into question mixed-purpose meetings, where an employer addresses multiple topics, which may include its views on unionization. Moving forward, employers will likely either need to conduct separate meetings about unionization if the meeting is otherwise necessary to address important workplace safety topics, or excuse employees during the portion of the meeting in which the employee will address its views on unionization. It is not clear how this new standard will apply if the topic of unionization arises unplanned during a mandatory meeting.
Finally, it is worth nothing that the Board expressly declined to address circumstances other than mandatory meetings with assembled employees, such as unscheduled one-on-one encounters between employees and agents of the employer. Thus, it remains unclear whether an employer’s agent may express views about unionization in a one-on-one meeting without first communicating the safe harbor information or otherwise indicating that the meeting is voluntary.
What This Means for Employers
Acknowledging that, for the last 76 years, these types of meetings were “clearly lawful” under extant NLRB law, the Board decided to apply this decision prospectively. Therefore, this new legal standard will not apply to any meetings conducted before this decision was issued. Going forward, however, the holding in Amazon.com will apply to all captive-audience meetings in which an employer discusses unionization (whether for or against it).
Employers who wish to communicate their opinions about unionization to employees, including (and especially) those in active union campaigns, should immediately pause any planned captive-audience meetings with employees and take a moment to evaluate their communication strategies in light of this decision. Employers will have to decide whether to invoke the safe harbor provisions (which may reduce the number of attendees) or to indicate in other ways that any planned meetings about unionization are voluntary.
Employers who opt for the safe harbor statements should ensure that its communications to employees are documented so that there is no doubt about its application. In other words, it would be risky to rely on verbal communications; instead, the safe harbor statements should be put in writing and circulated in a way that all employees will have access to them (including in alternate languages, if necessary).
Employers who utilize electronic calendars and scheduling tools need to be particularly careful, as there is a presumption that placing a meeting on an employee’s schedule is “compelling” them to attend. As such, they may want to include the safe harbor provisions within a calendar invite and/or circulate a timely, separate communication notifying employees about the voluntariness of the meeting.
Similarly, employers will need to be careful about holding such meetings via video conference software like Zoom or Teams, as those can create an electronic record of employee attendance. While tracking attendance is not per se unlawful under this new holding, even inadvertent records of attendance could moot the safe harbor statements. Therefore, before holding a video conference meeting, employers should ensure they have turned off attendance reports or other similar features in order to comply with the safe harbor provisions.
President Joe Biden proclaimed that he would be the most pro-labor president in history, and the Amazon.com Services LLC decision is in line with those priorities because it seeks to make unlawful an important campaign tool for employers. This decision also comes on the heels of the Starbucks decision, which overturned 40 years of precedent regarding the content of employers’ statements about unions. For more information about the Starbucks decision, please see our previous Alert. Under President-elect Trump’s incoming administration, we will likely see the Board composition change―and with that, a reversal of the more cutting edge and/or controversial decisions issued by the current Board. However, these pendulum swings can take time. Accordingly, so long as this case is considered good law, employers need to comply, or else they risk prosecution under the National Labor Relations Act through the Board’s authority to adjudicate unfair labor practices.
Given the stakes, it is important to consult with experienced labor counsel about union avoidance strategies that take into account the significant Board law shifts that have taken place over the past four years.
For More Information
If you have any questions about this Alert, please contact Thomas G. Servodidio, Eve I. Klein, Elizabeth Mincer, Anshul S. Agrawal, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
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