On Wednesday, November 13, 2024, the National Labor Relations Board (NLRB) ruled that an employer may no longer require employees to attend meetings in which the employer expresses its views on unionization. The 3-1 decision overturned more than 75 years of labor law precedent that allowed companies to host “captive-audience” meetings for employees.
In particular, the NLRB did away with its 1948 holding in the seminal case of Babcock & Wilcox Co., instead adopting the view that 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 right to freely decide whether or not to unionize, including the right to decide whether, when, and how they will listen to and consider their employer’s views concerning that choice.” The NLRB emphasized that its ruling is viewpoint neutral, meaning that any such mandatory meetings shall be unlawful regardless of an employer’s pro- or anti-union endorsement.
The NLRB reasoned that requiring employees to attend captive-audience meetings tends “to interfere with employees’ exercise of Section 7 rights” and “intrude on . . . employee privacy and autonomy” by, for instance, impinging on employees’ right to choose the degree to which they will participate in debate about representation without employer coercion, and observing and surveilling employees as they address their exercise of Section 7 rights. Further, an employer’s ability to compel attendance under the threat of discipline or discharge highlights its economic power over employees and tends to hinder them from acting freely.
Consequently, an employer will be found to have compelled attendance at a meeting in contravention of the NLRA 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.” Additionally, “[a]n express order from a supervisor, manager, or other agent of the employer” to attend meetings concerning the employer’s union views would be sufficient, but not necessary, to establish a violation of Section 8(a)(1).
Importantly, employers have not been entirely stripped of their ability to host meetings at which they express views on unionization. In fact, the NLRB’s decision specifically provides employers with a “safe harbor” from liability. Employers may lawfully hold meetings to express their views on unionization, but only if reasonable advance notice is provided that:
- The employer intends to express its views on unionization at a meeting at which attendance is voluntary;
- Employees will not be subject to discipline, discharge, or other adverse consequences for failing to attend the meeting or for leaving the meeting; and
- The employer will not keep records of which employees attend, fail to attend, or leave the meeting.
This change may be a big adjustment for employers, particularly those that have reasonably relied on captive-audience meetings for decades to express opinions about the formation of labor organizations. Acknowledging this challenge, the NLRB determined that its new governing standard would not be applied retroactively to pending cases and will only have prospective impact as of the date of its order.
The NLRB’s decision will likely be appealed, and with the incoming Trump Administration at full speed ahead, some speculate that the captive-audience meeting ban may not last very long. Regardless, employers should note the new law, which is now in effect.
