General – Page 2 – Concerted Action – The Duane Morris Labor Blog

March 27, 2026May 26, 2026 by Elizabeth Mincer

Captive Audience Speeches: What Employers Should Know About This Evolving Landscape

The legal landscape surrounding “captive audience” speeches has shifted significantly in recent years and continues to evolve at both the federal and state level. Between a landmark change in precedent from the Biden-era NLRB—one that may not survive under the current Trump-era Board—and a growing wave of restrictive state legislation, this is an area that every employer navigating union activity should have on its radar.

By way of background, the term “captive audience” speech refers to a mandatory meeting where an employer gathers employees (typically during work hours) to share its perspective on, and opposition to, unions. The legal foundation for captive audience speeches dates back to Babcock & Wilcox Co., 77 N.L.R.B. 577 (1948), where the NLRB first held that “compulsory audience” meetings on company property during work time were permitted under Section 8(c) of the National Labor Relations Act (“NLRA”). Thereafter, for over 75 years, Babcock stood as bedrock precedent—until the Biden-era Board upended it.

On November 13, 2024, the Board’s decision in Amazon.com Services LLC, 373 NLRB No. 136 (2024), overturned Babcock and held that mandatory captive audience meetings violate Section 8(a)(1) of the NLRA. The Board reasoned that such meetings had a “reasonable tendency” to interfere with and coerce employees in the exercise of their Section 7 rights.

The decision did carve out a safe harbor for employers by clarifying that meetings to address unionization are permitted under the Act where employees receive reasonable advance notice that: (1) attendance is voluntary; (2) no employee will face discipline, discharge, or other adverse consequences for failing to attend or leaving the meeting; and (3) the employer will not keep records of who attends or does not attend. However, employers may not rely on this safe harbor if, under all the circumstances, employees could reasonably conclude that attendance at the meeting is required as part of their job duties or that failing to attend could result in discharge, discipline, or other adverse consequences.

At the federal level, this restrictive framework may be short-lived. If given the right opportunity, the Trump-era Board is likely to overturn Amazon.com Services, restoring the longstanding Babcock precedent.

That said, even if Babcock is restored, employers will still need to contend with a growing trend in state legislation aimed at banning or restricting captive audience meetings.

Currently, at least thirteen states have enacted such laws, including Alaska, California, Connecticut, Hawaii, Illinois, Maine, Minnesota, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington. Several of these state laws have been challenged as preempted by the NLRA, but those challenges have been an uphill battle, and most have been unsuccessful thus far. One exception is California, where enforcement of its law is currently blocked by a preliminary injunction issued by the Eastern District of California.

All in all, employers, particularly those operating across multiple states, should pay close attention to this evolving landscape and ensure their labor relations strategies account for both federal and state-level developments. We will continue to provide updates on captive audience speeches and other labor law developments on this blog.

This Blog Post has been prepared for informational purposes only and does not constitute legal advice. This information is not intended to create, and the receipt of it does not constitute, a lawyer-client relationship.

March 26, 2026March 27, 2026 by Adam Keating

NLRB Clarifies That Cemex Framework Does Not Impose a Filing Deadline for RM Petitions

By Adam Keating

In a decision issued on March 25, 2026, the National Labor Relations Board provided important guidance on the scope of its 2023 Cemex Construction Materials Pacific LLC decision, holding that the framework established in that case does not create an enforceable deadline for employers to file petitions for representation elections. The ruling, issued in St. John’s College, Case 28-RM-337949, offers welcome clarity on an issue that has generated significant uncertainty among employers since Cemex was decided.

Background: The Cemex Framework

As many employers are now aware, the Board’s 2023 Cemex decision marked a significant shift in labor law by establishing a new framework governing employer responses to union demands for recognition. Under Cemex, when a union presents an employer with a demand for recognition supported by evidence of majority support among the relevant workforce, the employer has two options: voluntarily recognize the union, or “promptly” file a petition for an election — referred to as an RM petition in Board parlance. If the employer fails to act promptly, or if it commits unfair labor practices that undermine the election process, the Board may impose a bargaining order requiring the employer to recognize and bargain with the union without an election.

The Cemex decision indicated that “promptly” would ordinarily mean within approximately two weeks of the union’s recognition demand. Since its issuance, the decision has led to a notable increase in employer-filed RM petitions, as employers have sought to avail themselves of the election option rather than accede to voluntary recognition.

One significant area of ambiguity, however, has been whether the two-week guideline constituted a hard-and-fast filing deadline — and, if so, what consequences would attach to a late filing at the representation case stage.

The St. John’s College Decision

The St. John’s College case presented this question directly. The matter arose when the Communications Workers of America demanded recognition as the representative of a unit of graduate and undergraduate workers at St. John’s College. The college subsequently filed an RM petition, but a regional director dismissed the petition on the ground that it had not been filed within the timeframe contemplated by Cemex.

The Board reversed the regional director’s dismissal. In doing so, the Board held that Cemex did not modify the existing procedural rules governing the processing of representation petitions. Regional directors, the Board explained, should evaluate and process RM petitions under the established representation case procedures, without applying Cemex‘s timeliness language as a basis for dismissal.

The Board drew a clear distinction between the representation case process and the unfair labor practice process. As the Board stated, “The question of whether, within the meaning of Cemex, an RM petition was ‘promptly’ filed or whether ‘unforeseen circumstances’ excuse a later filing are properly left to unfair labor practice proceedings.” In other words, the timeliness of an employer’s RM petition filing is relevant only in the context of a subsequent unfair labor practice proceeding — not as a threshold barrier to the petition being processed.

Key Takeaways for Employers

This decision carries several practical implications for employers navigating the Cemex landscape.

First, employers should understand that an RM petition will not be dismissed at the representation case stage solely because it was filed outside the approximate two-week window referenced in Cemex. Regional directors will process such petitions under the Board’s standard procedures.

Second, however, employers should not interpret this ruling as eliminating the importance of acting promptly. The timeliness of an RM petition filing remains a relevant consideration in unfair labor practice proceedings. An employer that delays filing may still face exposure to a Cemex bargaining order if the Board later determines, in an unfair labor practice case, that the petition was not filed promptly and the employer engaged in conduct that undermined the election process.

Third, the decision underscores the importance of having a well-prepared response plan in place before a union demand for recognition arrives. Employers that are prepared to act quickly when confronted with a recognition demand will be best positioned to preserve their right to an election while minimizing the risk of a Cemex bargaining order.

We will continue to monitor developments in this area as the Board and the courts further refine the contours of the Cemex framework. Employers with questions about how these developments may affect their operations should consult with experienced labor counsel.

March 25, 2026 by Duane Morris

Introducing Our New Labor Relations Blog- Concerted Action

We are pleased to announce the launch of our new blog dedicated to traditional labor law and labor relations issues. As the landscape of workplace organizing, collective bargaining, and union activity continues to evolve, staying informed and up to date remains important for employers navigating these complex issues. This blog will serve as a timely, practical resource for in-house counsel, human resources professionals, and business leaders who need to understand how developments at the National Labor Relations Board, in the courts, and at the state level affect their operations and workforce strategies.

Our coverage will span the full range of traditional labor topics, including union organizing campaigns, election procedures, collective bargaining obligations, unfair labor practice charges, strikes and picketing, arbitration, and the ever-shifting standards that govern employer and union conduct. Whether you are managing a unionized workforce, responding to an organizing drive, or simply want to stay ahead of regulatory trends, our team of experienced labor and employment attorneys will keep you current and provide clear, actionable analysis to help you understand your rights and obligations under the National Labor Relations Act and related federal and state laws.

We invite you to bookmark the blog and sign up for our updates. We look forward to being a trusted resource as you navigate the challenges and opportunities in this dynamic area of the law.