Reversing decades of precedent, the National Labor Relations Board (“Board”) issued two recent decisions that will significantly restrict the right of employers to provide information to their employees about the impact of unionization. Both cases were decided by a 3-1 majority of the Board’s Democratic members, in what appears to be an eleventh-hour push to change well-settled law in advance of the Trump administration taking the reins next year.
Ban on Captive Audience Meetings
In Amazon.com Services LLC, 373 NLRB No. 136 (Nov. 13, 2024), the Board overturned Babcock & Wilcox Co., 77 NLRB 577 (1948), and held that employers may no longer require employees to attend meetings during work hours to listen to their employer’s views about unions. The Board said these so-called “captive audience meetings” interfere with and coerce employees in the exercise of their Section 7 rights under the National Labor Relations Act (“the Act”) by: 1) infringing on an employee’s right to choose the degree to which they will participate in the debate concerning representation; 2) serving as mechanisms for employers to observe and surveil their employees; and 3) demonstrating the employer’s economic power over employees, which unreasonably tends to inhibit them from acting freely.
The Board defended its decision as consistent with the First Amendment and Section 8(c) of the Act, explaining that Section 8(c) permits employers to share views on unionization, but not to compel attendance at meetings where those views are shared. The Board said that forcing employees to attend these meetings crosses the line between permitted persuasion and unlawful coercion.
Safe Harbor Disclosures
The Amazon.com Services, LLC Board told employers that they may avoid liability under the Act if, reasonably in advance of the meeting, they inform employees:
- The employer intends to express its views on unionization at the 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.
The Board said that employers who give these “safe harbor” assurances and follow through on them, may lawfully hold meetings on company time to share views on unionization. However, failure to give these assurances will not, itself, result in a violation of the Act.
The Board said that these safe harbor provisions are intended to give employers “clear guidance” to avoid liability, but added that if, under all the circumstances, employees could reasonably conclude that attendance at the meeting is required as part of their job duties or could reasonably conclude that their failure to attend or remain in the meeting could subject them to adverse consequences, an employer may be found to have unlawfully compelled attendance. Moreover, if a manager puts a meeting on the employee’s work schedule, such meeting would be considered unlawfully compelled.
Unfortunately, the Board’s “clear guidance” does little to actually guide employers. For example, the decision does not address to what extent employers may encourage attendance at a meeting by telling employees that they hope they will attend, or that attendance is encouraged. We suspect that the current Board would scrutinize such statements, even if safe harbor assurances are given.
Dissenting Member Marvin Kaplan criticized the decision as worse for employees because by making attendance voluntary, it will be easier for employers to observe which employees choose to attend, and that may lead to assumptions about an employee’s support for the union or lack thereof. He also called the majority’s decision content-based regulation of speech because it bans only meetings where the purpose is to express views on unionization.
The decision will apply prospectively. Legal challenges are expected.
Statements to Employees Regarding the Impact of Unionization on the Employment Relationship
In Starbucks, 373 NLRB No. 35 (Nov. 8, 2024), the Board adopted a case-specific approach to analyzing employer campaign statements, overruling Tri-Cast, Inc., 274 NLRB 377 (1985), which the Board said has been used for 40 years to “categorically immunize” employer campaign statements to employees about the impact of unionization on the employment relationship. The Board said that its case-specific approach is designed to ensure that employer campaign statements are non-threatening.
During union organizing drives, employers often explain to employees that the direct employer-employee relationship will be impacted by unionization. But, the Starbucks Board warned that employers should be careful not to misrepresent the impact or the law. Doing so may constitute an unlawful threat under the Act.
In overruling Tri-Cast, the Board said that the case was poorly reasoned, and that the statement the Board found lawful 40 years ago appeared to directly contradict Section 9(a). Section 9(a) of the Act gives unionized employees the right to have their grievances adjusted without intervention by their union, so long as their adjustment is not inconsistent with the terms of their collective bargaining agreement, and so long as the union is given the opportunity to be present at the adjustment. In Tri-Cast, the employer told employees that if a union was voted in, they would not be able to “handle personal requests” as they had been doing.
The Starbucks Board agreed that Section 9(a) contemplates a change in the manner in which employers and employees deal with each other following unionization, but that employers may not mischaracterize or misstate that change or the guarantees of the law.
Despite overruling Tri-Cast, the Board did not take issue with the statements made by Starbucks managers, finding the following statements lawful:
- “If you want a union to represent you…you want to give your right to speak to leadership through a union, you’re going to check off ‘yes’ for the election. If you want to maintain a direct relationship with leadership, you’ll check off ‘no.’”
- “And if it’s not in that [union] contract, it’s not a conversation in my opinion that’s going to happen with leadership…So I want to be clear on that. That a third party comes in and speaks for you. And everything will be grounded, from my experience and my opinion through the lens of that contract.”
The Board said its decision in Starbucks will apply prospectively.
Key Takeaways
The NLRB’s five-member Board is currently composed of a 3-1 Democratic majority, with Chairman Lauren McFerran’s term expiring on December 16, 2024. If McFerran is not confirmed for another term, that leaves two vacancies for Republican appointees, and if all seats are filled, it would flip the majority from Democrat to Republican. We expect Trump’s re-election to usher in a period of more employer-friendly decisions, but changes may take years. In the meantime, the current Board’s union-friendly approach is controlling and employers should be strategic in their campaign communications to employees.
Ballard Spahr’s Labor & Employment Group monitors NLRB developments and advises employers on all aspects of compliance with NLRB procedures.