You Can’t Say That: NLRB Reverses Precedent on What Equals Permissible Statements About Unions

On Nov. 8, the National Labor Relations Board (NLRB) issued yet another decision upending nearly 40 years of prior precedent. In Siren Retail Corp. d/b/a Starbucks and Workers United Affiliated With Service Employees International Union, the NLRB reversed its prior holding in Tri-Cast, Inc. from 1985. 

In the Tri-Cast ruling, the NLRB held that employer’s statements explaining the employee/employer relationship will change if a union is elected were lawful. Specifically, the board said, “there is no threat, either explicit or implicit, in a statement which explains to employees that, when they select a union to represent them, the relationship that existed between the employees and the employer will not be as before.” 

Up until last Friday, this had been the law for 39 years.

The NLRB reversed course in its most recent decision, with the majority now claiming that Tri-Cast was “poorly reasoned when it was decided, and its later application has categorically immunized employer campaign statements that, based on their content and context, could reasonably be understood to threaten employees with the loss of an established workplace benefit.” 

Under the new standard, employer statements or predictions that having a union would make it more difficult for employees to solve issues directly with their managers are only legal if they are “carefully phrased on the basis of objective fact to convey an employer’s belief as to the demonstrably probable consequences beyond his control.”

This is a much more nuanced and subjective approach, creating a heightened level of scrutiny for employer statements of this nature going forward. The NLRB declined to retroactively apply the revised standard but will apply it in future cases. 

Employers should be cognizant of these new restrictions on permissible statements, especially if they are in the midst of a union campaign, since statements about employees’ relationship with their employer if they unionize are often common talking points in these campaigns.

Given that President-elect Donald Trump will likely replace the NLRB’s current general counsel and could appoint new members to establish a Republican majority, the board is likely motivated to issue as many rulings as it can before January. Accordingly, employers can expect a flurry of new rulings, many likely reversing precedent on key issues, in the coming weeks.