The National Labor Relations Board (the Board) voted 3-1 (along party lines, with Member Kaplan dissenting) on November 13, 2024, to prohibit so-called "captive audience" meetings.1 In doing so, the Board overturned seventy-six years of precedent that previously held such meetings lawful, beginning with the 1948 case of Babcock & Wilcox Co., 77 NLRB 577 (1948).
This decision comes as no surprise to many, as the Board's General Counsel, Jennifer Abruzzo, has previously voiced her opposition to captive audience meetings, stating that they "inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals."2 It seems that the General Counsel is making good on her promises in the waning days of the current Board's tenure.
The Board's Reasoning
A "captive audience" meeting refers to a mandatory meeting of groups of employees called by the employer during an organizing campaign, in order to express the employer's views regarding (often against) unionization. Before last Wednesday's decision, such meetings were one of the few tools remaining in the employer's arsenal to defend against Union organizing. In prohibiting these meetings, the Board's majority reasoned that "[a] captive-audience meeting is an extraordinary exercise and demonstration of employer power over employees in a context where the act envisions that employees will be free from such domination . . . [w]e thus prohibit [them]."3 The sole dissenting Board member stated in response that "the Board simply does not have the power to prohibit captive audience meetings . . . [n]or may the right guaranteed by the Constitution . . . be evaded in the service of some other goal."4
Employers May Still Hold Group Meetings, With a Catch
It is important to note that, even in light of this new decision, it remains lawful for employers to hold voluntary "all-hands" type meetings during a union organizing campaign. That said, however, if the employer intends to discuss the organizing campaign or how the employees should vote, etc., the employer must take several precautions. The employer must tell employees, within a "reasonable" time before the meeting is held that (1) the employer is holding a meeting to discuss its views on unionization; (2) that their attendance is voluntary; (3) there will be no negative consequences if an employee does not attend, or if an employee chooses to leave during the meeting; and (4) that the employer is not taking attendance or noting which employees attend the meeting.
It should be noted that the new rule should be assumed to apply to any meetings with groups of employees. The rule applies at an "all employee" meeting but would also apply to a pre-shift meeting with a portion of the workforce in attendance, or a series of smaller "roundtable" meetings. It should also be noted that the Board stated that it will be unlawful for an employer to "tack on" union-related messaging during a work-related meeting that is on employees' calendars.
What Now?
This decision is not expected to have a long shelf life, but that is not a guarantee. Due to the results of the Presidential election, there is likely to be a change in the Board's composition. The agency has five members. They currently include three Democrats and one Republican. The chairman's term expires on December 16, 2024. While she has been re-nominated, the nomination has been dormant since August and may not be acted upon before President Trump assumes office. If that happens, the Board might switch to a 3-2 Republican majority in early 2025. If that happens, this rule, as well as other decisions the Board has issued over the last four years, are highly likely to be overturned. However, if the Board's chairman is confirmed for another term, the Board's Democratic majority will remain in place until 2026.
We are continuing to monitor this development. It is important to take the possibility of union organizing seriously and to take proactive steps if you wish for your business to remain union-free. If you would like to consult an attorney about how best to achieve that goal, or with any questions about these legal developments, please reach out to Louis J. Cannon Jr. (Baltimore) or Gerald E. Bradner (Memphis).
1 Amazon.com Services LLC, Case No. 29-CA-280153, et. seq. [https://www.law360.com/articles/1710447/attachments/0]
2 GC's April 7, 2022 Memorandum GC 22-04 [https://aboutblaw.com/2sF]
3 Id. at *12.
4 Id. at *26.