Reversing established precedent that has stood for decades, two recent decisions by the National Labor Relations Board make it increasingly difficult for employers to make the argument to workers that unionization is not in their best interests.
In Amazon.com Services LLC, the NLRB ruled that an employer violates the National Labor Relations Act by requiring employees to attend so-called “captive audience” meetings in which a company expresses its views on unionization. The Nov. 13, 2024 action comes just days after the Board issued a decision limiting an employer’s ability to explain to employees how unionization would change the nature of their relationship with their employer. In just five days, the NLRB has jettisoned several decades of precedents, the latest in a series of decisions by the current board that facilitate union organizing.
In Amazon.com Services, LLC, the Board held that an employer that requires employees, upon penalty of discipline or discharge, to attend a meeting concerning the employer’s views on unionization violates Section 8(a)(1) of the Act, because such meetings purportedly have a reasonable tendency to interfere with and coerce employees in the exercise of their Section 7 rights. In so doing, the Board essentially found that employees have an affirmative right NOT to be exposed to their employer’s perspective on unionization, notwithstanding that employers generally may compel (and in some cases must require) employees to attend all manner of meetings during working time. In doing so, the Board joins New York, Connecticut, California and a host of other states that have enacted legislation prohibiting employers from holding such captive audience meetings, although such laws may be unconstitutional.
However, the Board stated that an employer may hold meetings with workers to express its views on unionization as long as workers are provided reasonable advance notice of: the subject of the meeting, that attendance is voluntary with no adverse consequences for failure to attend and that no attendance records of the meeting will be kept.
The Board listed several reasons it believed captive audience meetings interfere with employees’ rights under the Act. These reasons included that the meetings intrude on employees’ Section 7 rights to decide whether, when and how to participate in a debate concerning union representation, and that they provide a way for employers to observe and surveil employees involved in such discussions. Further, employers’ ability to force employees to attend the meetings or risk discipline gives the messages communicated during the meetings a “coercive character” regarding unionization and might inhibit workers from exercising their rights, knowing that they depend on their employer for an income.
The Board made clear that this change will not be applied retroactively in the understanding that employers may have reasonably relied on prior NLRB precedent.
In Siren Retail, d/b/a Starbucks, the NLRB established a new standard for evaluating whether employer statements about how unionization would impact their relationship with workers violate the NLRA. In the Nov. 8, 2024 decision, the NLRB threw out decades of precedent under which most such statements were presumptively lawful. Under the new standard, employer predictions of negative impacts from unionization “must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond [its] control.” If such a prediction is not grounded in objective fact or predicts negative consequences that would result from the employer’s actions, it is “no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion.”
In Siren, the Board again ruled unlawful longstanding practices employers use to educate employees about unions. Moreover, under the Board’s ruling in Cemex Materials of the Pacific, employers found in violation of the new rules established by these cases can be forced to engage in collective bargaining, regardless of how employees voted in an election, where a union has established preliminary majority support and tendered a demand for recognition.
The board’s approach is likely to shift significantly in employers’ favor in the next four years under the new administration, which is expected to appoint a new general counsel in January. The political makeup of the board itself, however, may not change until August 2026 — details on that here.
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