NLRB Further Curtails Employers’ Ability to Discuss Effects of Unionization

At a Glance

• The National Labor Relations Board’s decision in Siren Retail Corp d/b/a Starbucks amps up scrutiny of employers’ statements about the impacts of unionization on the employer-employee relationship, lowering the threshold for when such statements violate the National Labor Relations Act.
• The decision reverses 40-years of NLRB precedent on this issue; however, the decision may be short-lived given the pending change in administration.
• The Board opted not to apply its new standard retroactively.

On November 8, 2024, the National Labor Relations Board issued its decision in Siren Retail Corp d/b/a Starbucks (Starbucks), that an employer’s statement that employees would not have the same direct relationship with their managers if they were represented by a union was an unlawful threat because employees might understand the statement to threaten employees with the loss of an existing workplace benefit.

The Board’s decision overturns Tri-Cast, Inc., 274 NLRB 377 (1985), which held that employers’ statements to employees about the impacts of unionization on the employer-employee relationship were simply explanatory, about some of the changes that a union brings to the workplace. Thus, under Tri-Cast, employers’ statements regarding the loss of a direct relationship were generally deemed lawful. For instance, the Board generally found lawful an employer’s statements advising employees that voting for a union could make the employer-employee relationship more “onerous and acrimonious”, as were similar employer statements that management would no longer be able to “work on an informal and person-to-person basis” with employees, and that management would have to “run things by the book, with a stranger, and [would] not be able to handle personal requests as [they had] been doing.”

New Rule

Under Starbucks, employers must now “carefully phrase” any such statements to “convey an employer’s belief as to demonstrably probable consequences beyond [its] control.” The Board will evaluate employer statements about the impact of unionization using a case-specific approach and focus on the context and content of the particular statement. The Board will particularly consider the extent to which such statements signify the loss of an existing benefit to which employees are entitled, and whether the employer’s statements are based on objective facts or mere speculation. The Starbucks decision reasoned that categorical immunization of this type of employer statement, as permitted by Tri-Cast, “could reasonably be understood to threaten employees with a loss of an established workplace benefit.”

What’s Next?

The Board’s decision comes at an auspicious time, as many expect that President-elect Trump will appoint a new general counsel on inauguration day, as President Biden did, and perhaps even replace the Board members themselves, which would set the stage to undo many of the dramatic changes in Board precedent over the last four years. If so, Tri-Cast and its 40 years of progeny will likely make a swift return.

While we wait to see where things are headed under the next administration, employers should limit their discussions of the impacts that unionization will have on the working relationship between employees and leadership with its workforce.

Legal clerk Chelsea K. Rader contributed to this update.