With the changes in administrations come changes in administrative agencies, and as we near the end of the Biden administration the currently employee-friendly National Labor Relations Board has issued its long-awaited decision regarding captive audience meetings. In the past, employers fearing unionization have occasionally held mandatory meetings for their employees where the employer voices its anti-union positions to employees in hopes the groups will not unionize.
The case, Amazon.com Services LLC (see case below), has been in progress for several years after employees at the employer’s Staten Island location were required to attend a series of mandatory meetings urging the employees to reject union representation. The union filed unfair labor practice charges based on statements made by Amazon’s agents at those meetings. An administrative law judge found that Amazon violated section 8(a)(1) of the National Labor Relations Act (the Act) by threatening to withhold benefits from employees upon unionization, and discriminatorily enforcing its solicitation policies. However, relying on the 1948 decision of Babcock and Wilcox, the judge found the captive audience meeting was lawful. The decision was ultimately appealed to the NLRB.
For years, employers have been able to hold some version of these meetings to discuss possible ramifications of employees unionizing. However, in addressing the issue of captive audience meetings, the Board listed several reasons why such meetings were in violation of section 8(a)(1):
- Such meetings interfere with an employee’s right under Section 7 of the Act to freely decide whether, when, and how to participate in a debate concerning union representation, or refrain from doing so.
- Captive audience meetings provide a mechanism for an employer to observe and surveil employees as it addresses the exercise of employees’ Section 7 rights.
- An employer’s ability to compel attendance at such meetings on pain of discipline or discharge lends a coercive character to the message regarding unionization that employees are forced to receive.
The Board found that the employers demonstrate economic power of their employees and those meetings tend to inhibit employees from acting freely in exercising their section 7 rights. Employers may only lawfully hold these meetings if workers are provided reasonable advance notice of the following:
- 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.
Other than that, if employers desire to hold these meetings, they could likely find themselves on the wrong end of an unfair labor practice charge. This should be the standard until a new administration, and new board members, are put in place over the next four years.
Dealing with employee unionization can be difficult. If you, or your organization need assistance when faced with the possibility of unionization, contact Wiley Reber Law, for legal advice that works.