(CN) — The National Labor Relations Board issued a landmark ruling Wednesday, declaring mandatory attendance, “captive audience” meetings for employees unlawful.
Employers often compel employees to attend captive audience meetings in order to denounce unionization, particularly when a union drive is underway or seems imminent. According to an analysis from the Washington D.C.-based think tank Economic Policy Institute, up to 89% of NLRB-supervised union campaigns in the U.S. between 1999 and 2003 featured captive audience meetings.
“Ensuring that workers can make a truly free choice about whether they want union representation is one of the fundamental goals of the National Labor Relations Act. Captive audience meetings — which give employers near-unfettered freedom to force their message about unionization on workers under threat of discipline or discharge — undermine this important goal,” NLRB Chair Lauren McFerran said in a prepared statement Wednesday.
The board majority made its ruling while considering six consolidated labor complaint cases against Amazon out of Staten Island. Workers at an Amazon warehouse on Staten Island first began organizing the Amazon Labor Union in April 2021, and they won the first successful unionization vote of a U.S. Amazon facility there a year later.
Workers and organizers at the Staten Island warehouse accused Amazon of resorting to union-busting tactics in its unsuccessful attempt to defeat the vote.
In their combined cases, the workers described at least four instances where Amazon made them attend captive audience meetings between November 2021 and March 2022.
The workers further accused Amazon of employing other union-busting strategies, like taking down union posters, threatening workers with loss of benefits or wages if they chose union representation and promising workers improved benefits to discourage them from supporting the union.
The NLRB’s Wednesday ruling orders Amazon to rectify these issues, and gives it 21 days to provide the board with a sworn certification attesting to the steps it has taken to comply. The board majority also found that captive audience meetings violate workers’ rights under the National Labor Relations Act, a legal boon for union organizers nationwide.
Christian Smalls, one of the founders of the Amazon Labor Union and an organizer at the Staten Island facility, called the development a “major fucking victory” on social media Wednesday afternoon.
“This is historic, now is the time to get Amazon organized nationwide!” Smalls said.
Despite the ruling, the board majority found that employers could still hold voluntary employee meetings to discuss unionization or other topics.
“We see no serious constitutional problem … in prohibiting captive-audience meetings while permitting employers to express their views in voluntary meeting,” the board majority wrote in its 25-page ruling.
McFerran issued the order alongside fellow Democratic board members David Prouty and Gwynne Wilcox. The board’s sole Republican, Marvin Kaplan, issued a 36-page dissent in which he claimed the majority decision “harkens back to an earlier era when the board sought to impose on employers a policy of strict neutrality regarding unionization.”
“This flagrantly unconstitutional overreach was decisively rejected by the Supreme Court as a violation of the First Amendment guarantee of freedom of speech,” Kaplan wrote.
He referenced the board’s 1948 ruling in the case Babcock & Wilcox, which enshrined the legality of captive audience meetings, and subsequent Supreme Court decisions which upheld that determination.
Amazon echoed Kaplan’s comments in its own statement on the development.
“This decision ignores over 75 years of precedent, contradicts the express language of the NLRA, and violates the First Amendment — it’s wrong on the facts and the law, and we intend to appeal,” Amazon spokesperson Mary Kate Paradis told Courthouse News in an email.
The NLRB majority didn’t hide from the fact that their ruling went against precedent; they explicitly said they were overruling Babcock in Wednesday’s order.
“While the board’s approach to captive-audience meetings has been fixed for decades, it has never been fully or persuasively explained. Captive-audience meetings are now a common feature of [union] campaigns. Given the importance of the issue, we believe a reexamination is long overdue. That reexamination leads us to overrule Babcock & Wilcox and its progeny,” the board majority wrote.
Before Wednesday’s ruling, ten states — California, Connecticut, Hawaii, Illinois, Maine, Minnesota, New York, Oregon, Vermont and Washington — had passed laws prohibiting captive audience meetings to varying degrees, with similar laws pending in other states. A federal lawsuit is currently pending against Illinois’ law, which won’t take effect until 2025.
U.S. unionization levels remain low nevertheless. The Bureau of Labor Statistics found in 2023 that only 12.2% of full time workers had union representation.