NLRB moves to silence employers during union drives 

The National Labor Relations Board (NLRB), the independent federal agency that oversees union activity, ruled Wednesday in a case involving Amazon that employers can no longer require workers to attend company-wide meetings where unionization is discussed. Employers typically used the events, dubbed “captive audience meetings,” to talk workers out of unionizing. Labor leaders have long pushed for their prohibition.  

The upshot of the ruling is that workers will only hear one side of the argument about whether or not to join a union: the union’s side. 

The National Labor Relations Act (NLRA), the main law covering union organizing, allows employers to talk about unionization to workers and even to express negative opinions about it so long as the employer does not threaten or bribe the workers. “[A]ny views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice [by the employer] … if such expression contains no threat of reprisal or force or promise of benefit,” the NLRA states.  

The NLRB has nevertheless decided that mandatory company meetings that include any talk about unions interfere with workers’ rights to organize. The Board said the hypothetical possibility that an employee might mistakenly “conclude that, in fact, they do not have free choice concerning union representation” was reason enough to ban the meetings entirely.  

It’s not clear if under the new rule employers could still meet with employees individually. Even prior to the new rule, such one-on-one sessions discussing unions could violate the NLRA depending on how they were handled. 

What the Board decision does is not merely re-interpret the NLRA, but effectively re-writes it. Only Congress can do that. The case that provoked the NLRB’s ruling on captive meetings was officially titled “Amazon.com Services LLC and Dana Joann Miller and Amazon Labor Union.” Amazon has not commented on the ruling. 

The Board’s five members are appointed by the president and confirmed by the Senate. It currently has a three-democrat majority, a lone republican, and one vacancy. 

Admittedly, an employer’s power to compel workers to attend meetings is clearly coercive and therefore not much of an enhancement of their individual rights. Yet, as Marvin Kaplan, the Board’s lone republican, noted in his dissent, nothing in the NLRA explicitly prohibits these meetings and it has long been accepted that an employer has control over the workers’ time while on the job.  

“The majority does not dispute that an employer has the right to require employees to attend meetings on safety, training on new equipment or work processes, or the like during working time,” Kaplan said, adding, “Absent any collectively-bargained agreement to the contrary, an employer has the right to determine what work employees will be required to perform during working time.”  

The NLRA’s provision which clarified that employers can express their views regarding unions was added to the law in 1947 as a part of what was dubbed the “Taft-Hartley amendments.” These were intended to check union power. It is therefore highly unlikely that lawmakers intended for employers to be prevented from holding these meetings.  

The employer-mandated meetings do serve a constructive purpose. They constitute the only realistic way to ensure that workers are fully informed of their collective bargaining rights. The information the unions provide to workers will invariably be one-sided in favor of collective bargaining. Unions, for example, aren’t likely to do things like explain the workers’ rights under the Supreme Court’s Beck decision, which allows workers to opt out of funding a union’s political activities.  

The current NLRB’s position on what crosses the line into coercive behavior can be baffling. It can be hard for employers to follow the rules when the rules themselves can seem arbitrary. In the Amazon case, for example, the Board ruled that the company engaged in an unfair labor practice by removing a series of worker posts on a company website. The posts, placed by an employee and union activist, had called for Juneteenth to be a company holiday. Amazon argued the posts violated its posting policies. Precisely why Amazon said this is not entirely clear.  

The NLRB said that the posts supporting the holiday were protected union activity, even if they didn’t directly involve unionizing. Therefore, removing the posts violated the worker’s rights because it could be construed as a threat against joining a union. This was despite the fact that Amazon had allowed other posts that were explicitly pro-union to remain on the same company website. The Board nevertheless argued that by removing the Juneteenth posts, “a reasonable employee certainly could have perceived it as signaling a change in [Amazon]’s willingness to tolerate such posts.” So, again, the hypothetical possibility that a worker might come to an odd conclusion was seen as reason to sanction Amazon.