In a decision released in November involving Amazon and its response to union organizing efforts, a majority of the members of the National Labor Relations Board (NLRB) overturned a 76 year-old NLRB decision and held that so-called employer “captive audience” meetings with employees during work hours are prohibited unless the employer meets new, specific requirements.
The NLRB is the federal agency charged with enforcing the National Labor Relations Act, investigating allegations of wrongdoing brought by workers, unions, or employers and conducting elections. A labor union wishing to become certified by the NLRB as the exclusive bargaining representative for a specified bargaining unit of employees may file an election petition with the NLRB by submitting evidence – usually signed authorization cards – that at least 30% of employees support the election petition. The NLRB investigates the petition and, assuming any objections to the election are not sustained by the NLRB, schedules a secret ballot election among the employees in the proposed bargaining unit. The election is conducted by the NLRB.
NLRB Elections
The NLRB seeks to hold elections as quickly as possible after pre-election challenges are decided. Because the Union seeking the election has necessarily been in contact with employees prior to filing the petition to convince employees to sign authorization cards or otherwise support the election petition, unions frequently have a head start on employers in campaigning and seeking to convince the “voters,” that is the employees of the proposed bargaining unit, to vote in their favor. In addition, while unions are free to promise employees greater benefits and higher wages during the election campaign, employers are prohibited from making promises of, for example, improved benefits.
NLRB Limits Employer “Captive Audience” Meetings
While unions have enjoyed the advantages described above, in a 1948 case called Babcock, the NLRB held that employers were permitted under the National Labor Relations Act to hold mandatory employee meetings during paid work time to express their views on labor organizations to employees, provided employees were not threatened, interrogated, or promised benefits. These so-called “captive audience” speeches were an opportunity for employers to speak to groups of employees all at once and were often an important part of an employer’s response to a union organizing campaign.
In its November decision (373 NLRB No. 136 Amazon Services, LLC) abandoning Babcock’s standard, a majority of the Board held: “. . . a captive-audience meeting is an extraordinary exercise of employer power over employees in a context where the Act envisions that employees will be free from such domination. We thus prohibit captive-audience meetings.”
“Safe Harbor” Provision
The Board in its decision did provide a “safe harbor” provision stating that employers may hold meetings with employees to share their views on unionization if, reasonably in advance of the meeting: 1) the employer informs employees of the employer’s intent to discuss unionization at the meeting; 2) employee attendance at the meeting is voluntary; 3) employees will not be disciplined, discharged, or otherwise subject to adverse action by the employer for failing to attend the meeting or for leaving the meeting; and 4) the employer will not take attendance or record employees who fail to attend or leave the meeting.
However, the Board provided the following caveat to the “safe harbor” provision discussion:
“An employer will be found to have compelled attendance at a meeting concerning the employer’s union views 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 at the meeting could subject them to discharge, discipline, or any other adverse consequences. An express order from a supervisor, manager, or other agent of the employer to attend such a meeting is sufficient, but not always necessary, to establish a violation. Moreover, attendance at a meeting that is included on employees’ work schedules, as communicated by a supervisor, manager, or other agent of the employer, will be considered to be compelled.”
This subjective standard suggests that employers attempting to utilize the “safe harbor” provisions and hold captive audience meetings under the new standard run a significant risk that an employee who has a pro-union stance will claim that he/she reasonably concluded that attendance was required or failing to attend could result in discipline, which could result in charges being filed against the employer before the NLRB.
Amazon may challenge the Board’s decision and the decision could be revisited if the members of the NLRB change under the incoming Trump administration. However, until or unless the decision is successfully challenged, an employer’s ability to get its message out to employees during a union organizing campaign has become much more challenging.
