The National Labor Relations Board ("NLRB") has been busy recently, reversing 80-year-old precedent concerning captive audience meetings and 40-year-old precedent concerning permissible statements about the impacts of unionization. Here's what employers need to know:
1. Captive audience meetings are unlawful.
In Amazon.com Services LLC, the NLRB banned employers from conducting mandatory informational meetings during work hours to share the employer's views on the downsides of unionization – i.e., "captive audience meetings." Overruling Babcock & Wilcox Co., 77 NLRB 577 (1948), which specifically blessed captive audience meetings, the NLRB held that an employer may still hold meetings with workers expressing its views on unionization, but only if: (1) its workers have advance notice of the subject of the meeting; (2) attendance is optional and there are no adverse consequences for failure to attend; and (3) no attendance records of which employees attended the meeting are kept. Therefore, should employers want to hold a meeting regarding unionization, they must follow Amazon.com's dictates or risk potential legal consequences.
2. An employer's statements about unionization efforts face heightened scrutiny.
In Siren Retail Corp. d/b/a Starbucks, the NLRB imposed new limits on the types of statements an employer may make to its workers regarding the impacts of unionization on the employer-employee relationship. Employers are no longer accorded the categorical protection once granted under Tri-Cast, Inc., 274 NLRB 377 (1985), which the Board overturned. Now, an employer's statements about the negative impacts of unionization are only lawful if: (1) they are grounded in objective fact; and (2) they reflect a belief about "demonstrably probable" outcomes that are beyond the employer's control. The Siren Retail test is amorphous, at best. And while we await more-specific guidance from the NLRB as to the test's contours, employers should exercise caution when communicating about unionization efforts with their workers.
The upcoming change in presidential administrations could jeopardize the longevity of the new Amazon.com and Siren Retail rules. Reversal under a Trump-appointed Board may very well be on the horizon. But until January, and perhaps until 2026, the NLRB remains a democratic majority, and its decisions remain the law.
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