The NLRB, Amazon, and Unions

The National Labor Relations Board (the “NLRB” or the “Board”) issued a significant decision yesterday in Amazon.com Services LLC, ruling that an employer violates the National Labor Relations Act (“NLRA”) by requiring employees under threat of discipline or discharge to attend meetings in which the employer expresses its views on unionization.

The Decision

The Board’s decision in Amazon.com Services LLC overruled its prior 1948 decision in Babcock & Wilcox Co., which recognized captive-audience meetings as lawful. The Board explained its decision to deviate from prior precedent on the basis that such meetings – commonly known as “captive-audience meetings” – violate Section 8(a)(1) of the NLRA because they have a reasonable tendency to interfere with and coerce employees in the exercise of their Section 7 rights. However, the Board clarified that an employer may lawfully hold meetings with workers to express its views on unionization so long as workers are provided reasonable advance notice of: (1) the subject of any such meeting; (2) that attendance is voluntary with no adverse consequences for failure to attend; and (3) that no attendance records of the meeting will be kept. 

According to the Board, an employer will be found to have compelled attendance at a meeting in violation of the Act if “under all the circumstances, employees could reasonably conclude that attendance at the meeting is required as part of their job duties or…that their failure to attend or remain at the meeting could subject them to discharge, discipline, or any other adverse consequences.”  The Board concluded that an “express order from a supervisor, manager, or other agent of the employer” to attend such a meeting would be sufficient, but not necessary, to establish a violation of Section 8(a)(1). For example, if a supervisor included attendance at the meeting on an employee’s work schedule, the meeting would be deemed compulsory for purposes of the Act.

The Board’s Rationale

The Board articulated several reasons why captive audience meetings interfere with employees’ rights under the NLRA, thus violating Section 8(a)(1). First, such meetings interfere with an employee’s right under Section 7 of the Act to freely decide whether, when, and how to participate in a debate concerning union representation or refrain from doing so. Second, according to the NLRB, captive audience meetings provide a mechanism for an employer to observe and surveil employees as it addresses the exercise of employees’ Section 7 rights.  Finally, the Board found important the fact 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 that employees are forced to receive. According to the Board, the employer’s ability to require attendance at such meetings demonstrates the employer’s economic power over its employees and reasonably tends to inhibit them from acting freely in exercising their rights.

The Board noted that its change in the governing standard would be applied prospectively only, to appropriately accommodate the reasonable reliance employers may have previously placed on Babcock & Wilcox.

Takeaways

This is a major decision for employers who are or soon will be facing union organizing campaigns, as it places significant restrictions on when, what, and how an employer may communicate its position on unionization without risking a violation of Section 8(a)(1) of the NLRA. The NLRB’s latest decision aligns with the actions already taken by several states, which have enacted laws banning captive-audience meetings.

For the time being, under this current Board, employers are no longer permitted to compel captive-audience meetings with their employees to express their views on unionization. Now, any such meeting must be voluntary and will be subject to the notice obligations described above. 

However, the Board’s ruling may be short-lived. President-elect Trump will tilt the Board back to a Republican majority – making it very possible that restoring this long-standing tool for employers will be high on the agenda.

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