A split National Labor Relations Board recently issued its decision in Amazon.com Services LLC, ruling an employer violates the National Labor Relations Act by mandating employees attend a meeting in which the employer expresses its views on unionization—commonly known as “captive-audience” meetings.
Such meetings had previously been considered lawful for more than 75 years under express National Labor Relations Board (NLRB or Board) precedent. The Board majority in Amazon did stop short of barring all employer meetings, noting voluntary meetings where employers express their views on unionization remain lawful and specifying “safe harbor” steps employers may take to avoid a violation when holding such meetings.
In its 1948 decision in Babcock & Wilcox,[1] the Board held that captive-audience meetings were lawful. The Babcock & Wilcox decision relied on Section 8(c) of the National Labor Relations Act (Act), which provides that the “expressing of any views, argument, or opinion, or the dissemination thereof … 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.” Section 8(c) has long been understood to implement the First Amendment’s free speech protections in the Act.[2] In finding captive-audience meetings lawful in Babcock & Wilcock, the Board relied on the language and legislative history of Section 8(c).
Since Babcock & Wilcox was decided in 1948, employers have broadly been permitted to hold captive-audience meetings, including during union organizing campaigns. The one exception has been during the 24-hour period preceding a union election, where pursuant to the Board’s 1953 decision in Peerless Plywood Co.,[3] both employers and unions may engage in objectionable (but not unlawful) campaign conduct warranting overturning the results of the election by making speeches to mass employee assemblies within 24 hours of the election.
In overruling Babcock & Wilcock, the Board found captive-audience meetings—which the Board referred to as “an extraordinary exercise and demonstration of employer power over employees”—violate Section 8(a)(1) of the Act.[4] According to the Board, captive-audience meetings intrude on employees “privacy and autonomy” regarding the exercise of their Section 7 rights in three distinct ways.
First, the Board held that such meetings force employees to listen to their employer’s views on union representation. Second, the Board ruled that captive-audience meetings allow employers to observe employees’ sentiments regarding unionization.[5] Third, the Board stated that they serve as a demonstration of “the employer’s economic power over employees,” which adds a coercive element to the employer’s message.[6]
The Board also found neither Section 8(c) nor the First Amendment precluded the Board from holding captive-audience meetings unlawful. As to Section 8(c), the Board stated captive-audience meetings involve a “threat of reprisal”—specifically, “the threat, whether explicit or implicit, that employees will suffer discipline, discharge, or some other adverse consequences if they fail to attend the meeting.”[7] By requiring economically dependent employees to attend such a meeting, a threat of reprisal exists if an employee fails to attend. Thus, according to the Board, Section 8(c), which does not protect speech that contains threats of reprisal, does not apply to captive-audience meetings.
As to the First Amendment, the Board found that banning captive-audience meetings properly accommodates an employer’s right to express its views with employees’ right to decline to listen to those views.[8] Notably, the Board did not address the arguments or issues that some have raised with its historic broad interpretation of what constitutes an unlawful “threat” conflicting with the US Supreme Court’s view expressed in Counterman vs. Colorado that the First Amendment (at least in a criminal context) requires proof that a speaker had a subjective understanding that their statements were threatening in nature.[9]
Finally, the Board held that any mandatory meeting where an employer expresses its views on unionization will be unlawful, regardless of the substance of the employer’s views and whether the employer express support for or opposition to unionization.[10]
The Board in Amazon expressly specified that voluntary meetings remain lawful under the Act and set forth guidelines for determining whether a meeting is voluntary or mandatory. According to the Board, an employer will be found to have compelled attendance at a meeting concerning the employer’s views on unionization in violation of the Act if (1) under all the circumstances, employees could reasonably conclude that attendance at the meeting is required as part of their job duties; or (2) under all the circumstances, employees could reasonably conclude that their failure to attend or remain at the meeting could subject them to discharge, discipline, or any other adverse consequence.[11]
The Board also established a “safe harbor from liability for employers who wish to express their views concerning unionization in a workplace, work-hours meeting with employees.”[12] Under this safe harbor, the Board will not find a violation if, reasonably in advance of the meeting, the employer informs employees of the following:
While providing these assurances will protect an employer from a finding of a captive-audience violation, the Board stated the failure to give these assurances will not automatically in and of itself result in a violation.
The meetings the Board held unlawful in Amazon were mandatory meetings with assembled employees. The general counsel also asked the Board to find that other types of meetings, such as unscheduled one-on-one encounters between an agent of the employer and an employee, are unlawful as well, but the Board declined to address other circumstances not presented in the case. Thus, the legality of one-on-one meetings is undetermined, and may be addressed in a future case.
Moreover, because the Board did not provide any concrete guidance as what type of meetings would be considered captive-audience meetings, it is unclear whether a regular huddle meeting or a safety meeting where union issues come up in response to an employee question, for example) would be suspect under the Board’s new standard. Likewise, it is uncertain whether an impromptu discussion on the shop floor with more than one employee would be considered a captive-audience meeting.
Additionally, although the case focuses on captive-audience meetings in the union organizing context, it is not unusual for an employer to hold meetings during union negotiations in response to a threatened strike or in advance of a ratification vote. As the Board majority did not discuss these types of meetings, it is not known whether the current Board would also restrain employers’ ability to communicate their position in these instances as well.
Finally, while the Board was clear that the threat of discipline for not attending a meeting would be a violation, it also asserted that if an employee could reasonably conclude that they may suffer “any other adverse consequences,” that too could be a violation. Unfortunately, the Board did not define what those could be and it is unclear whether it would be an adverse consequence to be given the option to go home without pay or continue performing regular duties while other employees were paid to attend a meeting.
The Board announced that it will apply its new standard on a prospective basis only in light of the reasonable reliance employers have placed on the fact they could lawfully hold captive-audience meetings under the longstanding Babcock & Wilcox standard that has applied for more than 75 years.
NLRB Member Marvin Kaplan dissented to overruling Babcock & Wilcox, noting the historic recognition that captive-audience meetings are protected by Section 8(c) and the First Amendment. He disagreed with the majority’s finding that captive-audience meetings are unlawful because attendance is mandatory, noting that mandatory meetings on a wide range of job-related issues, such as trainings on new processes or equipment, human resources issues, and safety standards, are a “common and accepted feature of the American workplace.”[14]
Contrary to the majority, Member Kaplan stated that he would have found that a captive-audience meeting is not an “extraordinary exercise of and demonstration of employer power over employees,” but rather “a routine application of the longstanding rule that ‘working time is for work.’”[15]
Captive-audience meetings are a common way for employers to provide employees with information regarding unionization. Under Amazon, employers will be found to have committed an unfair labor practice if they make such meetings mandatory, and under the 2023 Cemex framework, this could provide grounds to void a union election and automatically require the employer to recognize and bargain with the union without rerunning the election.
The Board’s captive-audience ban is likely vulnerable to reversal in the US Circuit Courts of Appeal on Section 8(c) and First Amendment grounds, for the reasons discussed in the Amazon dissent. In addition, in light of the recent US presidential election results, a newly constituted Republican NLRB will be extremely likely to look to reverse the Amazon decision and return to a standard that permits historically permitted employer speech.
However, a Circuit Court reversal would not be binding in other Board cases involving different parties, and it may take some time for a new Board to reverse the captive-audience ban. In the meantime, employers facing union organizing will be subject to unfair labor practice charges if they require employees to attend meetings where the employer discusses its views on unionization.
In addition, several state legislatures in recent years have enacted similar prohibitions on captive-audience meetings, and additional states may continue to enact such bans notwithstanding the Board’s Amazon decision. These state bans would not be impacted by a future Board’s reversal of Amazon under the new administration. However, these state-level captive-audience bans are currently subject to pending lawsuits asserting they are preempted by the NLRA, and the Amazon decision will underscore that regulating captive-audience meetings is the sole purview of the NLRB, not state legislatures.
Given the permissibility of captive-audience bans will continue to be litigated for several years or more, employers who wish to avoid unfair labor practice litigation and potential liability—including a possible Cemex bargaining order—should consider providing the Board’s “safe harbor” assurances when holding any meeting with employees to discuss unionization, and other steps to comply with the Board’s new standard. Specifically, employers should consider the following:
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following:
[1] 77 NLRB 577 (1948).
[2] See NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969).
[3] 107 NLRB 427 (1953).
[4] Amazon, 373 NLRB No. 136, slip op. at 12 (2024).
[5] Id. at 15.
[6] Id. at 14.
[7] Id. at 17.
[8] Id. at 19.
[9] 600 US 66 (2023).
[10] 373 NLRB No. 136 at 19.
[11] Id. at 20.
[12] Id. at 19.
[13] Id.
[14] Id. at 27.
[15] Id. at 31.