Since 1948, Section 8(c) of the National Labor Relations Act (NLRA) had been interpreted to protect the First Amendment right of employers to bring employees together to exchange views, arguments, and opinions about unions. Babcock & Wilcox Co., 77 NLRB 577 (1948). Last week, in Amazon.com Services LLC, 373 NLRB No. 136 (2024), a majority of the current NLRB overruled Babcock and held (prospectively) that an employer commits an unfair labor practice when it “compel[s] its employees, on pain of discharge or discipline, to attend a meeting during which it expresses its views concerning unionization.”

The Board’s Reliance on Previously Rejected Reasoning  

The NLRB majority reasoned that it was not prohibiting speech, but conduct (mandatory employer meetings on the topic of unions) it believed was inherently coercive and violated a newly created Section 7 employee right to refrain from listening. Dissenting Member Kaplan noted that Congress rejected this reasoning in 1947 when Section 8(c) was added to the NLRA, and the NLRB rejected it a year later in Babcock and tacitly in Sisters Food Group, 357 NLRB 1816 (2011) (declining to adopt dissenting Member Becker’s view that Babcock should be overruled).

Voluntary Meetings Still Allowed?

Recognizing the important labor policy function of allowing employers to present alternative views and information unions do not give employees, the NLRB majority created a “safe harbor” for employers going forward. Employers may continue meeting with employees as long as employees are given reasonable advance notice of the meeting and the notice informs employees:

1. The employer intends to express its views on unionization at a meeting at which attendance is voluntary;
2. Employees will not be subject to discipline, discharge, or other adverse consequences for failing to attend the meeting or for leaving the meeting; and
3. The employer will not keep records of which employees attend, fail to attend, or leave the meeting.

But even with these assurances, it is unclear how safe this harbor really is. The NLRB majority did not define how much notice will qualify as “reasonable.” The majority also held that an employer may still be found to violate the Act if, “under all the circumstances” employees could “reasonably conclude” their attendance was required or “their failure to attend or remain at the meeting could subject them to discharge, discipline, or any other adverse consequences.” 

Far-Reaching Implications

In a footnote, the NLRB majority purported to limit the reach of its decision to “mandatory meetings with assembled employees,” declining to address other scenarios such as “unscheduled one-on-one encounters between an agent of the employer and an employee.”

The rules the NLRB majority adopted are not explicitly limited to nonunion employers. Although it is unclear at this time, mandatory meetings union employers conduct to discuss ongoing contract negotiations, strikes, employee decertification efforts, and the like also may be covered by the new rules. Even new-hire orientation meetings, where an employer’s views on unions may be discussed or employees are required to sign a handbook containing a union-free philosophy statement, may be covered.

Whether a violation of the new rules will (standing alone) be grounds for a Cemex bargaining order is unknown, though federal courts would likely have significant questions about the validity of such an order.      

Finally, the NLRB majority, perhaps inadvertently, lent a hand to employers and associations challenging the validity of comparable state law union meeting bans in pending federal court cases, as the decision strengthens claims that these state laws are preempted by the NLRA and, therefore, unenforceable.

In Case You Missed It

While overruling Babcock is getting most of the attention, the NLRB majority seemingly narrowed the circumstances under which an employer may rely on “past practice” to solicit employee grievances during a union campaign and added to the list of employer statements it will find to constitute an unlawful threat. Click here for more information.

Employer Options

Under Section 10(c) of the NLRA, the Amazon.com decision is not self-enforcing—it does not become final until the appellate process is exhausted. Still, employers act at their peril if they continue to hold mandatory meetings and may consider other options:

• “Safe Harbor” Approach. Understand that most employees genuinely want to make informed decisions and will attend group or one-on-one meetings even if those meetings are voluntary and come with the notice and assurances this decision currently requires.

• Amicus Briefs. Employer associations are likely to file amicus briefs in support of Amazon’s appeal. Employers might consider supporting those efforts.

• Leedom Action. The Supreme Court’s decision in Leedom v. Kyne, 358 U.S. 184 (1958) may allow employers faced with a union petition to file an action in federal court seeking to enjoin the process based on claims this decision infringes on First Amendment rights they are entitled to exercise in the election process.

• Modern Labor Compliance Training. Employers may want to update and tailor training for managers and supervisors to reflect deficiencies the NLRB and its administrative law judges are consistently finding.

Silver Linings

Amazon has announced that it will appeal this decision, and NLRB Member Kaplan has stated his view that there are reasons why Amazon should be able to reverse this decision. Here are a few of those reasons:

• First Amendment. Because reasonable minds can disagree on the pros and cons of unionization, courts have uniformly held that employer speech enjoys First Amendment protections and serves federal labor policy by aiding employees in making informed decisions. The content-based speech restriction the NLRB majority adopted may face strict scrutiny and the same fate a Florida mandatory meeting ban recently met in Honeyfund.com Inc. v. Governor, 94 F.4th 1272 (11th Cir. 2024) (enjoining law barring employers from holding mandatory meetings expressing views the state found offensive and rejecting the type of speech-conduct distinction the NLRB majority adopted).

• Section 8(c). Courts have held that Section 8(c) means exactly what it says—"absent threats or promises, §8(c) unambiguously protects any views, argument, or opinion." See e.g., Trinity Services Group v. NLRB, 998 F.3d 978 (D.C. Cir. 2021). And “speech” includes even one-on-one meetings an employer may have with employees about unions and unionization. See e.g., NCRNC v. NLRB, 94 F.4th 67 (D.C. Cir. 2024). 

• No Deference. In Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), the Supreme Court held that appellate courts must determine independently what the “single, best meaning” of a statute is; government agencies like the NLRB are not entitled to deference on such questions of law.

• Tough Questions. The NLRB will face a challenging time explaining its about-face more than 75 years after Babcock held Congress added Section 8(c) to the NLRA in response to the NLRB’s prior declaration that mandatory workplace meetings concerning unions were per se a violation of the Act. With greater frequency, courts and legal scholars are questioning whether the NLRB “exercises policy expertise or instead vindicates ideological preferences.” Valley Hospital Medical Center, Inc. v. NLRB, 100 F.4th 994 (9th Cir. 2024). Courts may ask how an agency that changes its interpretation of the law whenever its political composition changes can claim to have some special expertise on what the law means.

Littler will be hosting a complimentary webinar to discuss the implications of this decision, the NLRB majority’s recent decision in Siren Retail (overruling the Tri-Cast doctrine), and other decisions impacting employer speech rights. Information on this upcoming webinar will be posted here.