11/20/24: National Labor Relations Board Rules Captive-Audience Meetings Unlawful
By Nicole Elgin & Lex Shvartsmann
On November 13, 2024, the National Labor Relations Board (NLRB) issued a decision in Amazon.com Services LLC (2024), overruling its prior precedent in Babcock & Wilcox Co. (1948) and holding that an employer violates the National Labor Relations Act (NLRA) when it convenes “captive-audience meetings.”
What is a Captive-Audience Meeting?
A “captive-audience meeting” refers to a mandated meeting in which an employer expresses its views on potential unionization. Under Babcock & Wilcox Co., such meetings were affirmatively protected under free speech principles and were not considered to be in violation of the NLRA, so long as they did not occur within 24 hours of a representation election.
The New Standard
Under Amazon.com Services LLC, captive-audience meetings will no longer be considered lawful. The NLRB supported its ruling through an analysis indicating that such meetings “override[] employees’ right to freely be informed about unionization – or not.” The NLRB held that such meetings provide an unlawful mechanism for an employer to observe and surveil employees as it addresses the exercise of their rights.
A Note for Oregon and Washington Employers
Although the Amazon.com ruling applies only prospectively, both Oregon and Washington have longstanding laws in place that prohibit employers from taking adverse action against employees who refuse to attend or participate in captive-audience meetings.
Can I Still Hold Meetings About Unionization Efforts?
Yes, the NLRB specifically states in its Amazon.com decision that its ruling does not “broadly prohibit employers from holding workplace meetings with their employees to express their lawful views on unionization in a noncoercive manner.” However, employers must be careful to balance their First Amendment right to persuade with their employees’ right to make their own decisions regarding unionization.
In order to ensure employers understand how to strike that balance, the NLRB in Amazon.com provided a list of assurances required to hold a lawful meeting. An employer will not be found to have violated the NLRA if, “reasonably in advance of the meeting, it informs employees that:
The employer intends to express its 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.”
An employer must provide and see through the following assurances to ensure the lawfulness of their meeting. With an upcoming change in administration, labor practitioners expect this recent ruling will not be prosecuted under a new NLRB General Counsel and that the Board may return to Babcock & Wilcox Co. However, until then, employers should be mindful of this recent change.
For any questions regarding unfair labor practices or your role as an employer in the unionization process, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.