On November 13, National Labor Relations Board (the Board) ruled that so-called captive audience meetings held by employers violate the Act in a case which addressed other issues as well. In Amazon Services LLC, the Board held that mandatory meetings held by employers during a union organizational campaign under penalty of discipline or discharge violate the Act. In doing so, the Board overruled the long-established precedent which held the opposite. See Babcock and Wilcox Co., 77 NLRB 577 (1948).
Captive audience meetings have long been a staple during union organizational campaigns and prior to representation elections. They are designed to enable employers to reach all employees in a petitioned-for unit and express the employer’s views to those employees. The Board held that under Section 8(c) of the National Labor Relations Act (NLRA), these types of meetings are no longer legal. However, the Board offered a safe harbor for meetings which are lawful voluntary meetings according to the Board.
To be safe, an employer may reasonably in advance of an employee meeting called by the employer, inform employees that it intends to express its views on unionization at a meeting at which attendance is voluntary, that employees will not be subject to adverse consequences for not attending the meeting or leaving it, and no records will be kept of which employees attend, fail to attend, or leave the meeting.
The Board ruled that the ruling in the case will apply prospectively only.
Court challenges are certain to follow this ruling so employers will not know for a long time if this new case will stick. In the meantime, employers should seek advice from counsel. The Employment and Labor Law Team at Sandberg Phoenix stands ready to assist employers about compliance with and litigation under the NLRA and its state law counterparts.
Speaking of state law, Illinois enacted the Worker Freedom of Speech Act which takes effect on January 1, 2025 (P.A. 103-0722). The Act, among other things, effectively outlaws captive audience meetings. While the Act may, in part, be preempted by the NLRA, preemption might not make any difference if the Amazon Services case is upheld.
