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New NLRB Case Threatens Employers' Rights to Counter Union Campaigns


Daniel R. Strader

Submitted by Firm:
Pierce Atwood LLP - Maine
Firm Contacts:
James R. Erwin
Article Type:
Legal Article

In an unfair labor practice complaint recently filed against online retailer Amazon, the Brooklyn Regional Office of the National Labor Relations Board appears to be taking aim at the right of employers to hold mandatory meetings with their employees during a union organizing campaign.

Such meetings, commonly referred to as “captive audience meetings,” where an employer may address its employees as a group and provide facts and opinions about why employees should vote against the union, are one of an employer’s most effective tools in countering a union’s message during a campaign. These meetings are particularly important given that a nascent union is often able to organize in secret for weeks or months before an employer is even aware that a campaign is underway.

In addition, unions are generally permitted to engage in conduct during a campaign—such as making promises to employees about wage and benefit increases, and calling, texting, and visiting employees at home—that employers cannot. Since 1948, captive audience meetings have been repeatedly upheld by the Board as a lawful and legitimate exercise of employers’ free speech rights, but NLRB General Counsel Jennifer Abruzzo appears poised to attempt to overturn this decades-long precedent.

While the May 31st complaint against Amazon is ostensibly a straightforward case arguing that the company engaged in certain unfair labor practices in the form of allegedly unlawful statements made during its meetings with employees, Ms. Abruzzo has been very clear that her goal is for the Board to outlaw such mandatory meetings entirely.

On April 7, 2022, Ms. Abruzzo issued a memorandum to the regional directors of all NLRB regional offices explaining her view that captive audience meetings are inherently coercive and intimidating, regardless of their content, and that she planned to “urge the Board to reconsider” its longstanding precedent allowing such meetings. Ms. Abruzzo referred to the Board’s precedent in this regard as being “based on a fundamental misunderstanding of employers’ free speech rights,” and stated her intention to ask the Board in “appropriate cases” to instead “find mandatory meetings of this sort unlawful.” In the complaint against Amazon, it appears that Ms. Abruzzo believes she has found such a case.

As union activity continues to heat up nationwide, all employers—whether currently union or non-union—should pay close attention to this case. If the Democratic-majority Board adopts the general counsel’s position that mandatory meetings with employees during a union organizing campaign are unlawful in all circumstances, employers will lose one of their few and most effective tools in countering aggressive and often misleading union messaging.

For questions on this case, or any other labor or employment concern, please contact Pierce Atwood employment law partner Dan Strader.