You Can Watch, But Be Careful: 3 Things Employers Get Wrong About Watching a Union Drive

You can watch, but be careful.

That is the whole lesson of the NLRB’s Amazon decision, and it is the part almost everyone is missing right now. Employers see a more Republican, more employer-friendly Board in Washington and read it as a green light to keep a close eye on the organizers in their plant. In my opinion, that is exactly backwards. A friendlier Board is the most dangerous time to get sloppy about surveillance — because the rules that punish watching never actually loosened, and the tools that do the watching for you got a lot more powerful.

Here is what happened, and the three things I see employers get wrong.

What the Amazon Ruling Actually Did

On November 13, 2024, the Biden NLRB decided Amazon.com Services LLC, 373 NLRB No. 136, and banned captive audience meetings — the mandatory, on-the-clock meetings employers have used for 75 years to make their case against a union. The Board overruled *Babcock & Wilcox* (1948) and held that forcing employees to sit through these educational meetings violates Section 8(a)(1) of the National Labor Relations Act.

The Biden Board did not rest only on the “mandatory” part. One of its stated reasons was that a captive audience meeting is a surveillance tool — it “provides a mechanism for employers to observe and surveil employees” in the act of deciding whether to support a union.

The decision is not settled law forever. It is under review in the Eleventh Circuit, the Trump Board’s General Counsel has publicly said it was wrongly decided, and once a third Republican member is seated the Board will have the votes to revisit a lot of Biden-era precedent. Unfortunately, this is all beside the point if you are the employer (like Amazon) who received an unfair labor practice over it.

1. Thinking a friendlier Board makes watching safe

The rule against surveillance is old, and it is not tied to Amazon. Generations of labor lawyers have taught supervisors the acronym TIPS: don’t **T**hreaten, **I**nterrogate, **P**romise, or **S**urveil. I personally like to use SPIT (it’s more memorable). The “S” comes straight out of *NLRB v. Gissel Packing Co.*, 395 U.S. 575 (1969), and the decades of Board law built on it. It is unlawful to spy on union activity — and unlawful to even create the *impression* that you are, whether or not you actually watched anyone.

None of that changes because the Board’s politics changed. Two things employers forget here. First, the current Board is 2–1 and, under its own long-standing custom, needs three votes to overturn precedent — so until another seat is filled, it cannot reverse Amazon or the surveillance line even if it wanted to. Second, even a fully reconstituted employer-friendly Board is not going to bless a supervisor sitting in the parking lot writing down who walked into the union meeting. The friendlier Board narrows some union-side theories at the margins. It does not repeal the ban on spying.

2. Forgetting that the tools now do the watching for you

This is the one that catches good employers off guard. You do not have to intend to surveil anyone anymore. Intent doesn’t matter. Your systems surveil automatically.

Security cameras, badge swipes, GPS on the trucks, productivity software, and — the fastest-growing trap — AI meeting bots and transcription tools like Otter.ai now sit in the background of ordinary work and quietly capture protected activity. The NLRB has already gone after this. An Ohio manufacturing worker’s unfair labor practice charge turned on an employer’s AI transcription tool recording a team meeting that drifted into union talk. And the Board’s position is that employees cannot consent their way out of it — clicking “I agree” when the bot joins the call does not give you the right to record their Section 7 activity.

For my clients, this is the practical exposure. You may never tell a supervisor to spy on anyone. But if your camera placement, your monitoring software, or your default meeting-recording settings capture who is organizing, the Board can treat that as unlawful surveillance — and the captive audience meeting itself, per Amazon, is one more place it can happen.

3. Ignoring the state-law overlay and the moving appellate picture

While everyone watches the NLRB, the strong Democrat states acts. Thirteen now restrict or ban captive audience meetings — Alaska, California, Connecticut, Hawaii, Illinois, Maine, Minnesota, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington — with more pending. California’s SB 399 went further than the Board, reaching mandatory political and religious meetings, and it comes with a private right of action.

The ground under all of it is still moving. SB 399 is currently blocked by a federal injunction in California Chamber of Commerce v. Bonta; the Ninth Circuit heard argument on July 7, 2026, and two of the three judges sounded skeptical of the law. But an injunction against a state statute does not repeal the federal rule — the NLRA still binds you while everyone waits. Ohio has no captive audience ban today, but “the Board is friendlier now” is exactly the kind of thinking that gets a multi-state employer tripped up in a state that does.

The Bottom Line

You can watch, but be careful. Watch your own conduct, your supervisors, and your technology more carefully than you watch the organizers. The captive audience question will keep bouncing between the Board and the courts for a while. The surveillance rule will not move nearly as fast, and the AI tools sitting in your meetings are not waiting on anybody.

If you want to pressure-test your monitoring setup, your supervisor training, and your meeting-recording defaults before a petition lands, that is exactly the kind of thing worth a call. Reach out anytime. My email is: matt@mattaustinlaborlaw.com.

*General information for employers, not legal advice.*