NLRB Issues 2 Major Decisions

On Nov. 13, the National Labor Relations Board (NLRB) ruled in Amazon.com Services LLC and Dana Joann Miller and Amazon Labor Union that captive audience meetings are unlawful. In rendering its decision, the NLRB has unequivocally overturned Babcock & Wilcox Co., 77 NLRB 577 (1948). The board identified the mandatory nature of these meetings as inherently coercive and a violation of employees’ Section 7 rights under the National Labor Relations Act (NLRA), which gives employees the right to form, join, or assist labor organizations and to engage in collective bargaining and other concerted activities for mutual aid or protection. While Section 8(c) of the NLRA clearly states that employers can express their views on unionization noncoercively, the NLRB distinguished that the employer cannot force employees to listen. Within the decision, the NLRB said employers may still hold meetings to discuss their views on the effects of unionization. The board also provided a “safe harbor” from liability for employers if they follow specific guidelines: The meeting must not be mandatory, employees should not be penalized for not attending, and there should be no record of who attends or if an employee leaves the meeting. The opinion also touched on control issues and employees’ economic dependence on the employer.

Additionally, five days earlier on Nov. 8, the NLRB issued a decision in the case involving Siren Retail Corp d/b/a Starbucks, which overruled the previous standard set by Tri-Cast, Inc. (1985). The new decision clarifies how the board will evaluate employer predictions about the impact of unionization on employee-employer relationships. Previously, under Tri-Cast, the board deemed nearly any employer statement about unionization’s impact on employee-employer relationships as lawful. Moving forward, the NLRB will evaluate these statements case by case, analyzing their content and context. Based on the Supreme Court’s decision in NLRB v. Gissel Packing Co. (1969), the NLRB will now use the same test for potentially threatening or coercive statements. This test requires employer predictions about unionization’s negative impacts to be based on objective facts and likely consequences beyond the employer’s control. Predictions not based on facts or suggesting adverse outcomes from the employer’s actions are considered threats of retaliation.

Both of these decisions will be applied only to future cases, respecting employers’ prior reliance on the previous standards. Additionally, both decisions were made along party lines, with Republican Board Member Marvin Kaplan providing the lone dissent.