NLRB Bans Captive Audience Speeches

Overruling 75 years of precedent, the National Labor Relations Board (NLRB) has ruled in Amazon.com Services LLC that employer “captive audience” speeches violate the National Labor Relations Act (NLRA) because they have a reasonable tendency to interfere with and coerce employees in the exercise of their Section 7 rights. This change in the law will apply prospectively to future cases. 

The NLRB has permitted an employer to express its views on unionization at employee meetings held during working time since 1948. This well-established rule is premised upon both the clear language of the NLRA, expressly permitting an employer’s non-threatening expression of “views, argument, or opinion,” and the policy of the NLRA to favor “uninhibited, robust, and wide-open debate in labor disputes.” 

The NLRB already closely scrutinizes the content of captive audience speeches (an employer cannot threaten, interrogate, promise benefits, punish) and regulates when such meetings can be held. But the current NLRB has now adopted General Counsel Abruzzo’s position that these meetings are lawful only if they are completely voluntary. The only Republican Member of the NLRB, Marvin Kaplan, strongly disagreed with the ruling in Amazon.com, calling it “indefensible” and “unconstitutional.” 

In light of this significant change in the law, an employer may lawfully hold meetings with workers to express its views on unionization only if it provides workers with reasonable advance notice of: “the subject of any such meeting, that attendance is voluntary with no adverse consequences for failure to attend, and that no attendance records of the meeting will be kept.”

KZA’s founding Partner, Gregory Kamer, who previously worked for two NLRB General Counsels, predicts: “this case will be one of the first of many Biden-Era NLRB decisions which will soon be reversed. Once President-elect Trump appoints a new General Counsel, an Operations Memo will issue adopting Board Member Kaplan’s well-reasoned dissent as the new NLRB position on captive audience speeches.” 

While we wait for the law to officially change again, please consult with a KZA attorney for guidance before scheduling employee meetings regarding unionization. 

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.