Anti-Union Meetings Axed by NLRB Poised for Future Trump Revival

The National Labor Relations Board’s decision to buck one of the oldest standing precedents in labor law could be short-lived as the incoming Trump administration looks to roll back President Joe Biden’s pro-worker agenda, labor observers say.

The board’s Democratic majority voted 3-1 on Wednesday to overturn the 1948 holding in Babcock & Wilcox to rule that mandatory “captive audience” meetings in which companies argue against unionization are illegal.

The decision came in a case against Amazon.com Inc. and capped a years-long effort by NLRB General Counsel Jennifer Abruzzo to place guardrails on the employers’ ability to communicate their anti-union beliefs. She first listed Babcock & Wilcox as a target in an April 2022 memo and announced charges against Amazon shortly after.

But, NLRB observers say President-elect Trump is likely to replace Abruzzo with a more conservative general counsel who will seek vehicles to overturn the Amazon decision.

“What usually happens is when the board changes is that you look for cases to overturn the precedent,” said Cathy Creighton, director of Cornell University ILR Buffalo Co-Lab and former NLRB attorney.

The shift back could come quickly for a general counsel looking to return to the old precedent on captive audience meetings, Michael Duff, a labor law professor at Saint Louis University, said.

“I’m sure there are charges being filed today claiming that a captive audience meeting is a violation,” he said of the NLRB case law’s current status.

75-Year-Old Precedent

Requiring workers to attend anti-union gatherings violates federal labor law protections that allow workers to freely choose whether, when, and how to participate in a debate about union representation—including refraining from doing so, the NLRB said in its recent ruling.

The case stems from a series of mandatory anti-union meetings at Amazon’s Staten Island facility, where workers voted to unionize in 2022.

The board emphasized that its ruling makes no distinction based on the viewpoint of the speaker—it bars employers from forcing workers to listen to speeches about their organizing rights, whether their bosses urge them to vote for or against a union.

The NLRB also established a “safe harbor” from liability for employers that want to speak to workers about labor organizing, saying they need to give employees advance notice that they intend to speak about unionization at voluntary meetings, that workers can leave the meetings without adverse consequences, and that attendance won’t be recorded.

Management-side attorneys at a conference for the American Bar Association in New York expressed their frustrations over the ruling to members of the board.

Crystal Carey, an attorney with Morgan, Lewis, & Bockius LLP, said during a panel featuring NLRB members that the captive audience case and another recent decision overturning the 1985 Tri-Cast ruling go too far in limiting employers’ speech.

“Based on my reading of these cases, which have happened very quickly over the last few days, it’s pretty clear that you’re looking to completely eliminate the rights of employers to have these conversations at all,” she said.

Other attorneys complained that the NLRB had lost its respect for standing precedent.

NLRB Chair Lauren McFerran shot back at the comments, saying all board members she has served with in her tenure “take this seriously and have great respect for the law.”

“When the board provides bright line rules, these aren’t good enough. When we provide more nuance, then we’re not providing bright line rules,” she said. “If Congress wants to change the law, it can change the law but we are up here as public servants trying to do that to the best of our ability.”

New “Flip-Flop” Issue

Jonathan Keselenko, partner at Foley Hoag LLP, said that while he disagrees with Wednesday’s ruling, it doesn’t seem to be difficult for employers to comply with it.

“It’s not that you can’t have the meetings, it’s just that you need to make clear that it’s voluntary,” he said. “We’ve been advising clients on this for a while now and we haven’t found it to have much of an impact on the attendance of these meetings at all.”

While the ruling might be overturned by a Republican board, it does bring the issue in play for future Democratic administrations, said Duff.

“Obviously, the Trump board will do everything it can to diminish the effect of this ruling and overturn it as soon as possible,” he said. “But I think the question will be whether this becomes now a new argument that is carried through in future boards and so we’ll have to see what they do with it.”

The Amazon case places captive audience meetings in the realm of other so-called “flip-flop” issues that go back and forth depending on which party is in control of the White House. The pattern, which draws the ire of practicing attorneys, includes other standards such as those around handbooks, severance agreements, and worker conduct on the picket line.