On November 8, 2024, the National Labor Relations Board (“NLRB” or “Board”) decided in Siren Retail Corp d/b/a Starbucks to overturn its 1985 Tri-Cast, Inc. precedent which markedly impacts the methods employers sometimes utilize when trying to remain union free. Moving forward, employers will need to tread lightly when discussing union issues with employees and sharing any opinions management has as to how unionization would or could impact the employer/employee relationship. If appropriate care is not taken when discussing how unionization could impact the employer/employee relationship, employers may run afoul of Section 8(a)(1) of the National Labor Relations Act (the “Act”) and trigger an NLRB order to recognize and bargain with a union even in situations where the employees vote against unionization.
Prior to the issuance of Siren Retail Corp, an employer had more leeway in offering predictions to employees as to how the employer/employee relationship could change if the employees chose to unionize. However, under the new NLRB standard, the NLRB may now find that some predictions constitute a “threat of retaliation based on misrepresentation and coercion”.
Pursuant to Siren Retail Corp, employers can no longer illustrate negative consequences of unionization due to the employer’s response to unionization (e.g., Starbucks’ statement that unionized employees will lose benefits they would otherwise be entitled to receive). Employer predictions on unionization must be “carefully phrased”, based on objective facts, and relate to consequences outside of the employer’s control. Predictions that fall short of satisfying these criteria and especially those suggesting negative consequences for employees who unionize are more likely to violate the Act because the current NLRB views them to be “veiled threats or coercive tactics rather than reasonable predictions”.
It is important to note that President Biden’s Democratic appointees issued this reversal of precedent. We will monitor this issue as President Trump may have the ability to install a majority Republican Board as one seat sits vacant and Chairman Democrat Lauren McFerran’s term expires in December 2024. The Chair is the deciding vote of a fully appointed NLRB. Chair McFerran awaits a Senate confirmation vote for a third term. If the Senate reconfirms her, then Democratic appointees will retain control of the NLRB until 2026. If not, then President Trump will regain Republican control much sooner.
Because of the consequences, employers need to take seriously how they communicate to employees on unionization issues. Our track record assisting employers in this area remains unblemished for more than sixty years. The Bennett Law Firm stands ready to help throughout the Northeastern United States.
For any questions regarding this Decision, please contact Peter Bennett (pbennett@thebennettlawfirm.