Key Takeaways:
- On November 8, 2024, the National Labor Relations Board overturned a long-standing rule permitting employers to make statements regarding the consequences of unionization on the relationship between employees and their employer during union campaigns.
- Moving forward, the Board will analyze whether such remarks constitute threats or coercion on a case-by-case basis, considering whether those remarks were based on “objective facts” as to what the National Labor Relations Act allows or requires.
- Employers facing unionization campaigns must exercise caution over statements regarding how unionization will impact their relationship with workers to ensure that such statements do not constitute impermissible threats or coercion.
On November 8, 2024, the National Labor Relations Board (“NLRB” or the “Board”) released its decision in
Siren Retail Corp., 373 NLRB No. 135, holding that employers may violate the National Labor Relations Act (“NLRA” or the “Act”) by making statements to employees during union campaigns regarding the consequences of unionization on the employee-employer relationship. In doing so, the Board reversed its 1985 decision in
Tri-Cast, Inc., 274 NLRB 377, which deemed such statements categorically lawful. Reversal of
Tri-Cast was a longstanding priority of President Biden’s NLRB-appointed General Counsel Jennifer Abruzzo.
In Siren Retail, the Board considered an administrative law judge’s decision on various statements Starbucks managers made during employees’ unionization efforts at one of its Seattle stores. In relevant part, the administrative law judge found that the managers’ comments that if employees wanted to “maintain a direct relationship with leadership,” they would vote against unionization, did not violate the Act, based on the Board’s decision in Tri-Cast.
The NLRB affirmed the administrative law judge’s finding. It took the opportunity, however, to overrule the Tri-Cast decision, in which the Board held that manager statements concerning the relationship between employees and their employer following unionization were categorically lawful. The Board found that the Tri-Cast decision was “poorly reasoned,” and had the effect of immunizing statements that could reasonably be understood to threaten employees with the loss of an established workplace benefit, such as an employer’s policy to address grievances without union intervention. Instead, the Board found that the Act’s purposes would be “better served if the content and context of such statements are analyzed on a case-by-case basis.”
The Board, citing the Supreme Court’s approach in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), held that for such statements to be lawful, the employer’s comments must be “carefully phrased on the basis of objective fact.” It made clear that statements inaccurately conveying what the Act provides may constitute threats of retaliation and coercion that run afoul of the NLRA’s protections. The Board noted that this case-specific approach would better protect employees’ rights. Nevertheless, the Board recognized that employers, including Starbucks in the case at hand, may have relied on the long-standing Tri-Cast decision and found that its new case-by-case framework should apply prospectively to avoid manifest injustice.
Following the Board’s Tri-Cast decision, employers facing union campaigns commonly communicated with their workforces that unionization would negatively impact their relationship with management. Employers now must scrutinize such remarks to safeguard against them being overly threatening or coercive. In particular, employers must ensure that such statements are grounded in fact and not predictive of negative consequences that fall within the employer’s control. It remains to be seen how the upcoming change in administration will affect the vitality and enforcement of the Siren Retail decision, but for now, employers should take a cautious approach. This decision is likely one of several landmark rulings that will issue in coming weeks as a key Board member’s term comes to an end.
