NLRB Bans 'Captive Audience' Meetings, Yanking Away Platform Employers Used to Combat Unionizing
The decision, which drew a dissent from the sole Republican on the board, upends 76 years of precedent.
November 14, 2024 at 04:14 PM
3 minute read
Employment LawThe National Labor Relations Board has banned so-called "captive audience" meetings—upending 76 years of precedent and stripping employers of a powerful platform many have used to discourage workers from supporting union-organizing efforts.
NLRB General Counsel Jennifer Abruzzo had been championing the idea of a ban since early 2022, soon after Democrats regained control of the five-member commission, "calling it a license to coerce" that runs counter to the spirit of the National Labor Relations Act.
The board adopted the ban via a ruling Wednesday in an unfair labor practices complaint against Amazon over mandatory anti-union meetings it held at its Staten Island, New York, warehouse before workers there voted to unionize in 2022.
In its ruling, the board asserted that because workers face the threat of punishment or termination if they don't attend the meetings, the gatherings infringe on the right of workers to decide for themselves whether to support unionizing.
The board also said the meetings give companies the opportunity to conduct surveillance on employees while the company argues its case against unionizing.
Until Wednesday's ruling, captive audience meetings had been deemed legal under the precedent set with the board's decision in Babcock & Wilcox Co. in 1948.
"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,” board Chair Lauren McFerran said in a statement Wednesday.
“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.”
The board currently has four members, with one seat vacant. Marvin Kaplan, the sole Republican, dissented, arguing that banning the gatherings 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.
An Amazon spokesperson told Law.com that it plans to appeal Wednesday's ruling, calling it "wrong on the facts and the law."
Amazon already is brawling with the NLRB on a broader issue—whether the agency's structure, which puts disputes before administrative law judges, violates its due process rights to judicial review in court.
Seattle-based Amazon sued the agency on Sept. 5 in federal court in San Antonio. A parade of other prominent firms have done the same in recent months, seizing on the U.S. Supreme Court's June ruling in Securities and Exchange Commission v. Jarkesy that administrative agencies cannot use their own tribunals to adjudicate private rights.
President-elect Donald Trump is expected to roll back pro-union policies after his inauguration in January, but it doesn't appear he could seek to undo the captive audience ban anytime soon.
While NLRB board members are nominees of the president subject to Senate confirmation, they have staggered terms. As a result, Trump couldn't remake the board in one swoop, and unless a current board member resigns it's set to remain Democrat-controlled until 2026.
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