The National Labor Relations Board (NLRB or Board) recently issued two rulings that caused a seismic shift in what is permissible employer conduct during a union organizational campaign. While there is uncertainty about the longevity of these rulings with an incoming change in administration, employers are required to comply with the new precedents for the time being.
Reversal of 40-Year Precedent Regarding Statements to Employees Regarding Unionization
First, on November 8, the Board ruled in Siren Retail Corp. d/b/a Starbucks, that employers likely violate the law by informing employees that having a union will result in the loss of a direct relationship between employees and management.
The NLRB ruled that such statements are unlawfully threatening, and the ruling reverses a 40-year-old precedent that had allowed employers to inform workers about such potential consequences of unionization. The Board adopted a new standard for evaluating such comments. Previously, employers could make explanatory statements to employees about the likely impacts of unionization on the employer-employee relationship in the workplace.
Now, the NLRB requires that employers’ statements on the impact of unionization be “carefully phrased on the basis of objective fact” about “demonstrably probable” consequences that are beyond the employer’s control. If the statements predict negative consequences from actions within the employer’s control or predict negative consequences that are not grounded in fact, those statements could be deemed “a threat of retaliation based on misrepresentation and coercion.” Going forward, employers will need to be more deliberate and calculated in their statements with respect to unionization efforts.
Reversal of 80-Year Precedent Related to Captive Audience Meetings
Second, on November 13, the Board ruled in Amazon.com Services LLC that “captive audience” meetings are unlawful. Historically, based on 80-year-old precedent, employers could hold informational meetings, during which they shared the employer’s views on the downsides of unionization; such meetings were held on company time, for which employees were paid but for which meetings, attendance was mandatory (hence the phrase “captive audience” meetings). Previously, as long as the mandatory meetings were non-coercive and the employer did not convey unlawful threats or make unlawful promises, the meetings were permissible.
Now, however, the NLRB has ruled that compelling employees to attend such meetings, with the inherent threat of discipline if they do not attend, constitutes unlawful coercion. While meetings regarding unionization and third-party representation are still permitted, employers must now comply with new, strict guidelines that the Board considers a safe harbor.
Employers must ensure that attendance at such meetings is truly voluntary and make clear that there will be no discipline or other negative workplace consequences for an employee’s decision not to attend the meeting or to leave the meeting after it has started. Additionally, employers must ensure that employees are provided “reasonable advance notice” regarding the purpose of the meeting and assure employees that attendance at the meetings will not be tracked.
Conclusion
Of course, in light of President Trump’s recent election, these shifts in NLRB precedent and subsequent enforcement by the NLRB General Counsel may be short-lived. It is highly likely that, upon inauguration, President Trump will appoint a new General Counsel who will likely seek to overturn these decisions. Likewise, a Trump-appointed NLRB will be expected to overturn such precedent soon after the NLRB has a Republican majority, which is anticipated to be in August 2026. However, in the meantime, employers would be wise to comply with these new rulings.
