The National Labor Relations Act (NLRA) provides employees with the ability to engage in protected concerted activities to improve their working conditions, including the right to vote on whether to have a labor organization represent them. Since 1948, the National Labor Relations Board (NLRB) — which enforces the NLRA — has maintained that employers may compel employees to attend meetings where the employer expresses its own opinion regarding the unionization of its workforce. Now, in a November 13, 2024, decision titled Amazon.com Services, LLC, the NLRB overturned more than 75 years of precedent by holding that employers are prohibited from requiring employees to attend meetings discussing unionization.
This case began in April 2021, when a group of employees attempted to organize at two New York facilities. The employer held a series of mandatory meetings regarding the organizing campaign to highlight concerns.
Based on this and other conduct, the union filed unfair labor practice charges. Initially, the Administrative Law Judge (ALJ) ruled that employer-held mandatory meetings to discuss unionization were lawful under the NLRA based upon more than 75 years of NLRB precedent set in Babcock & Wilcox Co., 77 NLRB 577 (1948). The union and the NLRB’s General Counsel appealed the ALJ’s decision to the NLRB.
The NLRB’s General Counsel argued that the NLRB in its Babcock & Wilcox Co. decision from more than 75 years ago failed to account for the potential coercive nature of mandatory meetings, and that an employer’s free speech rights under both the NLRA and the U.S. Constitution’s First Amendment are not absolute in requiring employees to listen to its speech.
First, the NLRB noted that mandated meetings interfere with employees’ rights under the NLRA’s Section 7, which guarantees employees with “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.” Requiring participation in a meeting forces employees to engage in the debate over unionization in the first place, which interferes with their ability to refrain from all related activities as authorized by Section 7.
Then, the NLRB argues that requiring participation also has a coercive effect by allowing employers to surveil their employees’ concerted activities in violation of Section 7. Lastly, because an employee doesn’t have the choice to attend the meeting without discipline, the employee may reasonably believe that extends to them not having a choice in whether to join a union when required to listen to an employer’s message on unions.
In addition, the NLRB found that free speech principles are not sufficient to insulate employers that conduct mandatory meetings regarding unionization from violating the NLRA. The NLRB pointed to the U.S. Supreme Court precedent that held that expressing an idea under free speech principles is different from compelling someone to listen to that idea. In this vein, the NLRB held that mandatory meetings violate the NLRA, but an employer may still hold lawful voluntary meetings if, in advance of the meeting, it informs employees that:
- The employer intends to express its views on unionization, and the meeting is voluntary;
- Employees will not be subject to discipline, discharge or other adverse action for failing to attend; and
- The employer doesn’t keep records of who attended, didn’t attend or left the meeting early.
Although the NLRB frequently makes its decisions retroactive, it recognized the severity of its action in overturning 75 years of precedent and made its holding prospective, meaning its only for future instances of mandatory meetings regarding unionization.
The NLRB’s ruling was not unanimous, and one board member, Marvin Kaplan, dissented saying that although the meeting itself may be mandatory, the employees are not compelled to follow through with the employer’s message. In other words, employees have long been required to hear an employer’s message and have long been permitted to ignore it under the NLRA. According to Kaplan, these required meetings are no different than employers requiring employees to receive campaign literature about the employer’s unionization opinions which the NLRB has long held to be permissive.
Further, Kaplan explained that the First Amendment must exempt mandatory meetings discussing unionization from NLRA violations. First, the majority’s decision here imposes a content-based restriction by banning only mandatory meetings regarding unionization while permitting mandatory meetings in other contexts. Second, the “right to be left alone” cited by the majority applies only to government intrusion into speech and would not apply in the context of a private employer with its employees. As a result, Kaplan argues, the majority is not taking the narrowest path to restrictions while preserving free speech rights and, thus, is violating the First Amendment’s free speech principles.
The NLRB’s decision comes on the heels California’s SB 399, which takes effect on January 1, 2025, and prohibits California employers from requiring employees to attend meetings where either “political” or “religious” matters are discussed. Notable, “political” includes viewpoints on unionization amongst other matters defined. As previously reported, this bill creates significant questions about how and when employers may communicate matters to their employees. Employers should consult with counsel about whether it should change policies or procedures in the wake of both this NLRB decision and SB 399’s enactment.
Matthew J. Roberts, Associate General Counsel, Labor and Employment
CalChamber members can read more about Protected Concerted Activity in Union and Non-Union Workplaces in the HR Library. Not a member? Learn how to power your business with a CalChamber membership.
