The National Labor Relations Board (NLRB) has overturned a 1948 precedent and declared that an employer commits an unfair labor practice in violation of the National Labor Relations Act (NLRA) when it requires employees to attend meetings that encourage the employees to reject unionization. The reversal of this precedent has been on organized labor’s list of targets for most of the 76 years that it has existed; with Amazon.com Services LLC, 373 NLRB No. 136 (November 13, 2024), it has finally happened. But the reelection of Donald Trump eight days earlier may render the victory temporary. In the meantime, however, employers facing union organizing campaigns have another altered landscape to navigate, however uncertain it may be.
A foundation of federal labor law is that employees—rather than employers or unions—are the ones who choose whether to be represented by a union. Employees most often make this selection through a secret ballot election process supervised by the NLRB. Such elections occur within a few weeks after either the union or the employer file a petition seeking such an election. The period between the filing of the petition and the election is typically characterized by both the union and the employer seeking to persuade voters (employees) to vote for or against union representation.
Employers typically try to educate and persuade voters by holding meetings during working hours with the employees to explain why the employees should reject unionization. Unions have for decades complained that such “captive audience” meetings are unfair because, among other reasons, the unions do not have similar access to all the voters. In the past decade, 10 states—California, Connecticut, Hawaii, Illinois, Maine, Minnesota, New York, Oregon, Washington, and Vermont—have passed laws that attempt to limit captive audience meetings, although such laws have been vulnerable to legal challenge. And NLRB General Counsel Jennifer Abruzzo has made banning captive audience meetings a priority in her enforcement regime.
With the Amazon.com Services LLC decision, the Board has now agreed with the General Counsel. The NLRB cited three primary reasons for its conclusion that captive audience meetings interfere with employee rights under Section 7 of the NLRA:
- They “impinge on an employee’s Section 7 right to choose, free from any employer coercion, the degree to which [they] will participate in the debate concerning representation;”
- They “can readily serve as a mechanism for employers to observe and surveil employees as they address the exercise of employees’ Section 7 rights;” and
- “The employer’s ability to require attendance at the meeting demonstrates the employer’s economic power over the employees and reasonably tends to inhibit them from acting freely.”
This decision combines in an important way with another recent NLRB decision to alter the union organizing landscape in favor of unions. In 2023, the Board decided in Cemex Construction Materials Pacific, LLC, 327 NLRB No. 130 (August 23, 2023) that the commission of unfair labor practices by an employer can result in an order to bargain with a union even if a majority of the employees voted to reject the union. This ruling creates a very strong incentive for employers to steer clear of all unfair labor practices, including anything that might be characterized as a captive audience meeting. But it also inhibits the employer’s ability to get its message out to employees preparing to vote on an important matter.
There is a strong possibility that a reviewing court will reject the Board’s decision and force the law to revert to the rule that prevailed for three quarters of a century. But more likely the change in administrations from Biden to Trump will quickly render the Amazon.com Services LLC decision and the Cemex decision as dead letters.
NLRB enforcement cases are driven by the Board’s General Counsel. President Biden broke with tradition by firing then NLRB General Peter Robb on the very first day of his administration rather than wait several months for Robb’s term to expire. It is a near certainty that President Trump will follow suit and current General Counsel Abruzzo will not be in her job come February 2025. Other than taking one or two cases to the Board as a test case to overturn Amazon.com Services LLC, the new General Counsel is unlikely to pursue captive audience claims. Similarly, the NLRB General Counsel may decline to pursue bargaining orders under Cemex.
Employers who are involved in union organizing campaigns at this moment in history, therefore, face a high degree of uncertainty. It is critical that such employers are well advised so that they can weigh the very uncertain law against the costs and benefits involved in getting their message out to employees in advance of a vote.