Last 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...

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