In April 2021, employees at Amazon founded the Amazon Labor Union and began organizing at an Amazon fulfillment center and storage center in Staten Island, New York. Amazon responded with an anti-union campaign that included mandatory meetings for employees, known as “captive-audience meetings,” where they urged employees to reject union representation.
During these meetings, Amazon representatives solicited and impliedly promised to remedy employees’ grievances, telling employees statements such as, “we rely on your feedback to improve the workplace” and that “we can’t make improvements if we don’t know your concerns.” Amazon representatives encouraged employees to take their concerns up the chain of command.
Also, during two of these meetings, Amazon managers stated that Amazon would withhold improvements in wages and benefits during bargaining and/or the pre-election period.
Then, on July 8, 2021, employees Dana Miller and Connor Spence delivered a petition to management seeking to make Juneteenth a paid holiday. On July 9, Miller posted a message on Amazon’s internal “Voice of Associates” (VOA) digital message board about the Juneteenth petition and inviting employees to sign it at the union tent.
Amazon managers discussed removing Miller’s post, and on July 12, Miller was called to a meeting where she was told such posts violated the company’s solicitation policy. Miller’s post was removed multiple times when she attempted to repost it. Evidence showed that Amazon had not removed other posts, including those related to the union campaign, from the VOA board.
The National Labor Relations Board (Board) found that Amazon violated the National Labor Relations Act (Act) by:
Miller & Solicitation Policy
Regarding Miller’s posts on the VOA and the solicitation policy, the Board found that Amazon discriminatorily enforced its policy because it had allowed other posts, including those related to the union campaign, to remain on the VOA board while removing Miller’s post about the Juneteenth petition.
The Board considered Miller’s testimony, which stated that she had seen hundreds of “vote yes” and “vote no” posts related to unionization on the VOA board, none of which were removed. Similarly, a March 2022 post advertising “VOTE NO” t-shirts in the break room was not removed, despite the solicitation policy prohibiting distribution of materials. The Board therefore found that Amazon discriminatorily enforced the solicitation policy against union-related activities.
Solicitation of Grievances
The Board reversed the Administrative Law Judge’s dismissal of allegations that Amazon violated the Act by soliciting and impliedly promising to remedy employees’ grievances. The Board reasoned that Amazon’s statements clearly created an implied promise to remedy the concerns because the statements told employees that by bringing their concerns up the managerial chain, they would be resolved. This type of promise during a union campaign is considered a violation of the Act because it discourages union support, unless the employer has a past practice of soliciting grievances in a similar manner. In this case, the Board found that Amazon’s solicitation of grievances during the captive audience meetings was not consistent with any past practice. In fact, the statement encouraging employees to escalate their concerns was a sea change in Amazon’s approach. Therefore, the Board found this statement was a violation of the Act.
Threatening to Withhold Benefits
Threatening to withhold benefits during a union organizing campaign is also considered an unfair labor practice, as it can interfere with employees’ rights to freely choose whether or not to unionize. The Board affirmed the ALJ’s ruling on this issue, agreeing that these statements constituted unlawful threats under the Act.
Captive Audience Meetings
In terms of the captive audience meetings, the Board overruled its previous decision in Babcock & Wilcox Co., which had allowed employers to mandate attendance at such meetings. The Board found that the holding in Babcock & Wilcox was not compelled by the text or legislative history of the Act and was flawed as a matter of statutory policy.
The Board found that compelling attendance at these meetings interfered with employees’ rights under the Act because it compelled employees to attend these meetings under threat of discipline or discharge. The Board reasoned that these meetings have a reasonable tendency to interfere with and coerce employees in the exercise of their rights under the Act because they interfere with an employee’s right to freely decide whether, when, and how to participate in a debate concerning union activity, or refrain from doing so. The Board also reasoned that an employer’s ability to compel attendance at such meetings contributes to a coercive message regarding unionization that employees are forced to receive. An employer’s ability to require attendance at such meetings demonstrates the employer’s economic power over its employees and tends to inhibit employees from acting freely in exercising their rights.
However, the Board made clear that an employer may lawfully hold meetings with workers to express its views on unionization so long as workers are provided reasonable advance notice of: the subject of any such meeting, that attendance is voluntary with no adverse consequences for failure to attend, and that no attendance records of the meeting will be kept. The Board also made clear that this decision will only apply prospectively.
The Board ordered Amazon to cease and desist from engaging in all of these practices, and post notices about this decision to all employees at the Staten Island facilities.
Amazon.Com Services LLC, 373 NLRB No. 136.
Note: This decision represents a significant shift in NLRB policy regarding captive audience meetings, limiting employers, including private schools, from mandating attendance at meetings where they express anti-union views.