Mandatory “captive audience” meetings in which companies argue against unionization are illegal, the National Labor Relations Board ruled in a case involving Amazon.com Inc., prohibiting one of employers’ most potent weapons against labor organizing campaigns.
Requiring workers to attend anti-union gatherings violates federal labor law protections that allow workers to freely choose whether, when, and how to participate in a debate about union representation—including refraining from doing so, the NLRB’s Democratic majority held in its Wednesday ruling.
“Ensuring that workers can make a truly free choice about whether they want union representation is one of the fundamental goals of the National Labor Relations Act,” Chair Lauren McFerran (D) said in a statement. “Captive audience meetings—which give employers near-unfettered freedom to force their message about unionization on workers under threat of discipline or discharge—undermine this important goal.”
While the board majority handed unions a major victory with its captive audience ban, that win may be fleeting as the incoming Trump administration’s NLRB appointees will likely restore employers’ power to force workers to attend those gatherings.
The case stems from a series of mandatory anti-union meetings at Amazon’s Staten Island facility, where workers voted to unionize in 2022.
Amazon has been waging a high-profile battle against worker organizing. The company’s anti-union conduct has drawn rebukes from the NLRB. Amazon has recently taken to suing the agency.
The NLRB’s Wednesday decision overturned its 1948 ruling in Babcock & Wilcox Co., which permitted mandatory anti-union gatherings. The board said its new prohibition on those meetings will apply prospectively only, to accommodate the reliance that employers may have put on the 76-year-old precedent that it struck down.
Viewpoint-neutral ban
Mandatory anti-union gatherings interfere with workers’ organizing rights because they coercively demonstrate employers’ economic power by requiring attendance on pain of discipline or discharge, the NLRB said.
The board emphasized that its ruling makes no distinction based on the viewpoint of the speaker—it bars employers from forcing workers to listen to speeches about their organizing rights, whether their bosses urge them to vote for or against a union.
“None of these viewpoints is ‘offensive’ to the Act,” the NLRB said. “What is offensive to the Act, rather, is the employer’s use of its power to require employees to listen to its views—whatever they are.”
The now-banned meetings also disrupt organizing rights because they provide a mechanism for companies to observe their workers as they listen to managers address the exercise of organizing rights, the board said. Workers who speak out or ask questions will be noticed by their employers and might fear that they’ve exposed themselves to reprisal, according to the ruling.
Employer safe harbor
The NLRB established a “safe harbor” from liability for employers that want to speak to workers about labor organizing. To take advantage of that protection, companies need to give employees advance notice that they intend to speak about unionization at voluntary meetings, that workers can leave the meetings without adverse consequences, and that attendance won’t be recorded.
Republican NLRB member Marvin Kaplan dissented from the ruling, saying the board’s ban on captive-audience speech violates the First Amendment.
“Here, the conflict between the majority’s prohibition of captive-audience speeches and the Constitution is manifest and irreconcilable,” Kaplan said.
The NLRB majority decided against retroactive application of its captive audience ban and didn’t fault Amazon for holding meetings that were lawful at the time.
But the board ruled that Amazon committed several other unfair labor practices in its bid to resist unionization, including selectively enforcing a solicitation policy, threatening employees with discipline, and warning workers that it would withhold improvements to wages and working conditions if they vote for the union.
Amazon didn’t immediately respond to a request for comment.
