/>iLast week, the Democrat-majority members of the National Labor Relations Board (NLRB or Board) overruled a nearly 40-year old precedent (Tri-Cast), now making it unlawful for employers to explain to employees, even in non-coercive, non-threatening terms, the potential downside of selecting union representation (see our post here). With the election outcome poised to flip the Board to a Republican majority, and apparently looking to go out in a blaze of glory (or ignominy, depending on your perspective), the same NLRB members decided on November 13, 2024 to overrule nearly 80 years of precedent to hold that an employer violates Section 8(a)(1) of the National Labor Relations Act “when it compels employees to attend a captive-audience meeting on pain of discipline or discharge.”
Since the Board’s 1948 decision in Babcock & Wilcox Co., it has been permissible under federal labor law for employers to require employees to attend meetings during working time, the purpose of which is to communicate the employer’s position on union-related matters. So long as the employer’s communications are non-coercive and do not convey unlawful threats or make unlawful promises, the employer’s requiring employees to attend these meetings – commonly referred to as captive audience meetings – has been lawful under the National Labor Relations Act (the Act). That is no longer the case.
The NLRB majority’s opinion spills much ink rationalizing and justifying its upending eight decades of precedent. As expected, the NLRB’s lone Republican appointee penned a lengthy dissent, criticizing the majority’s rationale and results driven decision-making. In the end, however, how the NLRB got to where it did matters little, as the effect of the decision is to now outlaw what for nearly the entire time the Act has been enacted – the statute became law in 1935 and captive audience meetings have been declared lawful since 1948 – has been one of management’s most effective tools to respond to union organizing efforts.
Like its decision last week overruling Tri-Cast, the NLRB held that its decision declaring captive audience meetings unlawful will be applied prospectively only, noting that employers have relied on precedent in conducting those meetings. That means that current cases involving captive audience meetings should not be impacted, but employers will violate the Act if they conduct captive audience meetings in the future.
Of course, the recent election undoubtedly will have an impact on the NLRB’s decision. A new NLRB General Counsel – the agency’s chief prosecutor – likely will place a case in front of a newly-constituted Republican majority Board involving this issue, allowing that majority to revisit and possibly if not probably reverse course again, returning to the long-time position that captive audience meetings are lawful. How quickly that happens is unclear. Until then, employers will need to forgo conducting captive audience meetings, lest they violate federal labor law (as well as state law captive audience meeting bans, which are proliferating across the country; see our posts here and here).
