NLRB’s New Ruling Bans Captive-Audience Meetings

Topics: Union-Management Relations

Earlier this week, on November 13, 2024, the National Labor Relations Board (NLRB) issued its decision in Amazon.com Services LLC, ruling that employers violate the National Labor Relations Act (NLRA) by requiring employees to attend “captive-audience meetings” under threat of discipline or discharge. In doing so, the Board overruled its 1948 decision in Babcock & Wilson Co. Historically, mandatory captive-audience meetings have served as a powerful tool, which allowed employers to share their views with all members of the bargaining unit on why the workplace should remain union-free. 

The decision is not surprising. In April 2022, General Counsel Abruzzo issued a memorandum announcing that she planned to ask the Board to find that mandatory meetings where employers provide their outlook on unionization where unlawful under the NLRA. In Amazon, the Board followed through holding that Babcock was poorly reasoned and that captive audience meetings “have a reasonable tendency to interfere with and coerce employees in the exercise of their Section 7 right to freely decide whether or not to unionize…” 

A number of states, including California, have recently enacted legislation banning, at least in part, captive audience meetings. Under California’s AB 399, effective January 1, 2025, California employers can no longer discharge, discriminate, retaliate against, or threaten to carry out such action when an employee refuses to attend a captive audience meeting where the employer is discussing their views about politics, including unionization. 

Key Takeaways 

1.  Voluntary Meetings Are Still Allowed: 

The Board clarified that employers are still allowed to hold meetings where they express their views on unionization, but only under very specific conditions:

• Employees must receive reasonable advance notice of the meeting, including the subject matter.
• Attendance must be voluntary, with no adverse consequences for those who choose not to attend.
• No attendance records may be kept.

2.  The Change Will Be Applied Prospectively 

The Board made it clear that this new standard will only apply moving forward, respecting the reliance employers may have placed on Babcock & Wilson and therefore the NLRB will not attempt to claim that prior mandatory meetings violated the Act.

What is Next? 

We expect that both the Amazon NLRB ruling and the new California statute will be challenged in the courts. Under the recent Loper Bright decision, the federal courts are less likely to respect an agency decision that overturns a 75-year precedent, and we believe there is a good chance that the decision could be overturned by the courts, especially if it makes it all the way to the United States Supreme Court.  

In addition, we know that a number of other state statutes banning mandatory captive audience meetings, like the one in California, are being challenged in the courts on the grounds that they either (a) are an unconstitutional restriction on the freedom of speech; and/or (b) are preempted by federal law and the National Labor Relations Act.  

Finally, with the recent election results, employers can expect to see another paradigm shift under the new Trump Administration. Even if the ban on mandatory captive audience meetings survives court scrutiny, the Trump NLRB, which will have a 3-2 pro-employer majority, is likely to look at all of the recent pro-union decisions issued by the Biden Board and seek to overturn them. Thus, it is doubtful that the federal ban on mandatory captive audience meetings will survive a four-year Trump NLRB.

Of course, until then, Amazon reflects the current standard, and effective January 1, a corresponding California ban on mandatory captive audience meetings will kick in. Employers involved in union elections also must be wary that under the Board’s 2023 Cemex decision, holding a captive-audience meeting that violates Amazon could be deemed an “unfair labor practice” that the Board may throw out the results of any election and issue a Cemex bargaining order requiring the employer to recognize and begin bargaining with the union. 

For more information about this decision and other critical legal updates for 2025, we encourage you to register for CDF’s complimentary November 20 webinar.