Final week, the Democrat-majority members of the Nationwide Labor Relations Board (NLRB or Board) overruled an almost 40-year previous precedent (Tri-Solid), now making it illegal for employers to clarify to workers, even in non-coercive, non-threatening phrases, the potential draw back of choosing union illustration (see our submit right here). With the election final result poised to flip the Board to a Republican majority, and apparently trying to exit in a blaze of glory (or ignominy, relying in your perspective), the identical NLRB members determined on November 13, 2024 to overrule almost 80 years of precedent to carry that an employer violates Part 8(a)(1) of the Nationwide Labor Relations Act “when it compels workers to attend a captive-audience assembly on ache of self-discipline or discharge.”
Because the Board’s 1948 choice in Babcock & Wilcox Co., it has been permissible below federal labor regulation for employers to require workers to attend conferences throughout working time, the aim of which is to speak the employer’s place on union-related issues. As long as the employer’s communications are non-coercive and don’t convey illegal threats or make illegal guarantees, the employer’s requiring workers to attend these conferences – generally known as captive viewers conferences – has been lawful below the Nationwide Labor Relations Act (the Act). That’s not the case.
The NLRB majority’s opinion spills a lot ink rationalizing and justifying its upending eight a long time of precedent. As anticipated, the NLRB’s lone Republican appointee penned a prolonged dissent, criticizing the bulk’s rationale and outcomes pushed decision-making. Ultimately, nevertheless, how the NLRB acquired to the place it did issues little, because the impact of the choice is to now outlaw what for almost the complete time the Act has been enacted – the statute turned regulation in 1935 and captive viewers conferences have been declared lawful since 1948 – has been one in every of administration’s handiest instruments to reply to union organizing efforts.
Like its choice final week overruling Tri-Solid, the NLRB held that its choice declaring captive viewers conferences illegal will probably be utilized prospectively solely, noting that employers have relied on precedent in conducting these conferences. That implies that present circumstances involving captive viewers conferences shouldn’t be impacted, however employers will violate the Act in the event that they conduct captive viewers conferences sooner or later.
After all, the current election undoubtedly will have an effect on the NLRB’s choice. A brand new NLRB Normal Counsel – the company’s chief prosecutor – probably will place a case in entrance of a newly-constituted Republican majority Board involving this subject, permitting that majority to revisit and probably if not most likely reverse course once more, returning to the long-time place that captive viewers conferences are lawful. How shortly that occurs is unclear. Till then, employers might want to forgo conducting captive viewers conferences, lest they violate federal labor regulation (in addition to state regulation captive viewers assembly bans, that are proliferating throughout the nation; see our posts right here and right here).