On Friday, November 8, 2024, the National Labor Relations Board (“NLRB” or “Board”) overruled a 40-year-old precedent relating to employer statements made during unionization efforts. While employer statements about the negative impact of unionization were generally deemed lawful, the Board will now use a fact-based analysis to determine whether such statements may be considered unlawful threats under the circumstances.
Background
During union organizing campaigns, employers often caution employees that unionization may have negative impacts on the employee-employer relationship. An employer may discuss the fact that wage and benefit decisions will have to be made collectively and that employees will no longer have a direct line to management to express grievances. In Tri-Cast, Inc., 274 NLRB 377 (1985), the NLRB had held that “there is no threat, explicit or implicit” in these kinds of statements, and therefore, they were categorically deemed to be lawful and could not form the basis for an unfair labor practice charge.
The Current Case
Siren Retail Corp d/b/a Starbucks, available here, centered on various statements made by Starbucks management during mandatory employee meetings to discuss then-pending unionization efforts. The Court held that various manager statements—including that unionization would cause employees to lose certain benefits and would not remedy employees’ complaints that they could not receive tips from credit card statements—constituted unlawful threats. The Court then held that statements concerning the impact unionization would have on employees’ ability to address issues individually were permissible, but in doing so, the Court also took the opportunity to overrule Tri-Cast and instead require a case-by-case analysis of manager statements. Quoting from the 1969 Supreme Court decision in NLRB v. Gissel Packing Co., the Board held that “employer predictions about the negative impacts of unionization . . . ‘must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond [its] control.’” If the negative consequences would result from an employer’s own actions, then the prediction will be deemed a “threat of retaliation based on misrepresentation and coercion.”
The Board is applying this new standard prospectively only, given employer’s reliance on the rule previously set forth in Tri-Cast.
Takeaway
This decision is part of a string of more union-friendly precedents issued by the NLRB in the last several years. Some observers have suggested that, with a new administration likely to set a different tone beginning in 2025, the Board may become more active through the end of the year. Regardless, employers facing a unionization campaign should seek legal counsel before making any statements to employees that could be deemed threats under the new standard.
If you have any questions about the new standard set forth in Siren Retail Corp d/b/a Starbucks or how to ensure your business remains in compliance with NLRB standards, please reach out partners Joshua Schwartz, Kevin Moore or any member of Barley Snyder’s Labor Law Practice Team.
