NLRB Outlaws “Captive Audience” Union Campaign Meetings

Originally published by Mississippi Manufacturer’s Association.

On November 13, 2024, the National Labor Relations Board ruled that Amazon.com Services committed an unfair labor practice by requiring employees to attend a work time meeting to hear Amazon’s views on union representation. That ruling overturned nearly 80 years of Board decisions based on the 1947 Taft-Hartley amendments. Combined with the Board’s August 2023 Cemex decision and the Board’s quickie election rule, the anti-employer bias of union campaign law is now at a high water mark.

Beginning November 14, 2024, an employer may communicate its union representation views to groups of employees meeting on work time only if the employer gives each of these advance notices to all invitees:

1. The employer intends to express its views on unionization at a meeting at which attendance is voluntary;
2. Employees will not be subject to discipline, discharge or other adverse consequences for failing to attend the meeting or for leaving during the meeting; and
3. The employer will not keep records of which employees attend, fail to attend, or leave the meeting.

Even if the employer gives these notices, the Board may hold that attendance was compelled if it appeared on the employees’ work schedules, if a supervisor told an employee to attend, or if other evidence suggests that a hypothetical reasonable employee might have feared adverse consequences for failing to attend.

The Board did not address these issues:

• If the employer treats attendance as work time, must it also pay for the break time of employees who refuse to attend?
• If the employer later generates written communications about how participants responded, are those texts, e-mails or notes records of who attended?

This new NLRB policy may have a short life. The Board’s General Counsel plays a gatekeeper role in unfair labor practice litigation and the current General Counsel is likely to be removed and replaced on or soon after January 20, 2025. Some months later, some appellate courts are likely to deny Board petitions to enforce unfair labor practice findings based on this new policy. While the current Board majority is likely to survive the first two years of the new Administration, the next Board majority is likely to move swiftly to reverse the current Board’s radical rulings.