In one of its most consequential decisions in years, the National Labor Relations Board ruled that captive audience meetings violate federal labor law. Employers can no longer compel workers to listen to anti-union propaganda under threat of discipline or discharge. The Board’s decision overturns a seventy-six-year precedent, fulfills a longstanding goal of the labor movement, and carries wide-ranging implications for union organizing, employer resistance, and the politics of labor law under the incoming Trump Administration.

Amazon’s Captive Audience Meetings

In 2021, Amazon employees began a union organizing drive at the ecommerce giant’s JFK8 fulfillment center in State Island, New York. Amazon responded by unleashing a powerful array of anti-union weapons, including a barrage of captive audience meetings — holding as many as one “every 45 minutes, 6 days a week.” Workers were closely monitored throughout; “[m]anagers personally notified employees that they were scheduled to attend, escorted them to the meetings, and scanned their ID badges to digitally record attendance.” In spite of the company’s resistance, the Amazon Labor Union (“ALU”) won the April 2022 election, establishing the first and as yet only bargaining unit at a U.S. Amazon facility. Nonetheless, the ALU and NLRB General Counsel brought legal challenges against Amazon’s captive audience practices, among other labor law violations.

In an initial 2023 decision, an administrative law judge rejected the General Counsel’s arguments that Amazon’s captive audience meetings were unfair labor practices (“ULPs”). Hewing to precedent, the judge found the company’s captive audience meetings permissible under the Board’s 1948 decision in Babcock & Wilcox, Co. That case, decided just one year after Congress passed the Taft-Hartley Act, was the law of the land for nearly eight decades — until last week.

The Ruling

In Amazon.com Services LLC, the Board overruled Babcock & Wilcox and outlawed captive audience meetings. Writing for the Board, Chairperson McFerran and Members Prouty and Wilcox held the meetings are unfair labor practices under Section 8(a)(1) of the Act because they unlawfully interfere with the exercise of employees’ Section 7 rights to self-organization. The majority also held a ban on meetings accords with the free speech principles embodied in Section 8(c). (It’s important to note the Board’s ban on captive audience meetings isn’t a ban on anti-union (or pro-union) employer speech. Under the Board’s holding, employers may still express their views on unionization in noncoercive, voluntary settings so long as they provide adequate assurances to employees that attendance really is voluntary.)

Section 8(a)(1)

Section 8(a)(1) prohibits employers from “interfer[ing] with, restrain[ing], or coerc[ing] employees” in the exercise of their Section 7 rights. Per the Board, captive audience meetings violate Section 7 rights, and are thus prohibited by 8(a)(1), in at least three ways.

Firstly, captive audience meetings interfere with employees’ “fundamental right to be let alone” — “to choose, free from any employer coercion, the degree to which [they] will participate in the debate concerning representation.” Compelling employees to attend a captive audience meeting is no different than compelling citizens to attend a political party’s campaign event. A long line of First Amendment cases protects the “unwilling listener’s interest in avoiding unwanted communication,” an interest at its “zenith” when “captivity makes it impractical for the unwilling viewer or auditor to avoid exposure.” Employees made to attend employer-mandated meetings are precisely these sorts of captives; they must listen unless they’re ready to lose their jobs or endure workplace discipline.

Secondly, captive audience meetings interfere with employees’ Section 7 privacy rights in another way. Whether or not workers comply with the employer’s order is an “employer-compelled ‘observable choice’ concerning union support that the Board has prohibited in a variety of settings.” Managers at the JFK8 Amazon warehouse, for instance, “personally notified employees that they were scheduled to attend, escorted them to the meetings, and scanned their ID badges to digitally record attendance.” Moreover, meetings themselves are often sites of extensive surveillance. Managers may — and frequently do — monitor not only who speaks and what they say, but also who doesn’t speak, where they sit (next to a union supporter?), and what their nonverbal behavior indicates about their union support (a “raised eyebrow” or “darting glance?”).

Finally, captive audience meetings are an inherently coercive expression of employers’ overawing economic power. As the Board wrote, “[j]ust as employees may reasonably conclude that they have no real choice but to attend the meeting, so may employees reasonably conclude that, in fact, they do not have free choice concerning union representation.” The Supreme Court has said employers’ conduct isn’t protected when it crosses the line from mere persuasion to coercion. Captive audience meetings, according to the Board, cross that line.

Free Speech & Section 8(c)

Much of the legal action centers on whether Section 8(c), a Taft-Hartley Act addition to the NLRA, protects employers who hold captive audience meetings. Section 8(c) reads: “The expressing of any views, argument, or opinion, or the dissemination thereof . . . shall not constitute or be evidence of an unfair labor practice . . . if such expression contains no threat of reprisal or force or promise of benefit.”

The Board’s analysis “appropriately starts and ends with the text of Section 8(c).” The problem with captive audience meetings isn’t speech, it’s conduct. Under Section 8(c), which “implements the First Amendment,” employers are free to “noncoercively express their views on unionization.” But employers “may not compel employees to listen to them.” The Board’s decision applies only to conduct, not the content of employer speech.

Furthermore, Section 8(c)’s legislative history “confirms that Section 8(c) was not intended to shield employers from liability under Section 8(a)(1) for compelling attendance at a captive-audience meeting.” Senator Taft, the legislation’s principal sponsor, said 8(c) “has no application to statements which are acts in themselves or contain directions or instructions.”

The 1948 Babcock & Wilcox Board, in permitting captive audience meetings, left the plain text of 8(c) entirely “unexamined,” citing only “unspecified ‘legislative history’” as its rationale. Its position has only one plausible hook: a comment in the Senate Report that the Board’s 1946 Clark Bros. decision, which outlawed captive audience meetings, was “too restrictive.” But several factors indicate Congress didn’t intend to repudiate Clark Bros. First, it was the House bill, not the Senate bill, from which the text of 8(c) was chiefly derived. Second, the Babcock & Wilcox Board ignored the rest of the Act’s legislative history, which contained no suggestion Congress’s intended to alter Board policy on captive audience meetings. Third, the Taft-Hartley Act didn’t “in any way” alter the Section 7 rights undergirding the holding in Clark Bros. Finally, the Senate Report’s reference to Clark Bros. concerned the Board’s restriction on employer speech “made in the plant on working time,” not its “independent” holding outlawing captive audience meetings.

Looking Ahead

Amazon.com Services disarms employers of one of the most powerful weapons in their anti-union arsenals. But it may not be the law for long. Overturning Amazon.com Services will likely be a top priority for the incoming Trump II Board. How state captive audience bans will interact with a Trump II Board’s reversal will be crucial; see Ben’s post for an analysis of the preemption issues raised.