12/3/24 NLRB Overrules Standard Regarding Lawful Predictions of the Effects of Unionization
By Nicole Elgin & Lex Shvartsmann
By Barran Liebman LLP,
Oregon firm,
On November 8, 2024, the National Labor Relations Board (NLRB) issued Siren Retail Corp d/b/a Starbucks, overruling a 40-year-old precedent regarding what employers can lawfully communicate to employees on predictions about the impact of unionization.
Previous Standard
Under the NLRB’s decision in Tri-Cast, Inc. (1985), employers could lawfully make statements about the impact of unionization on the relationship between employers and employees. For the past 40 years, this standard has held that employers may lawfully explain to employees that their relationship may change when employees select a union to represent themselves.
New Standard
Under Siren Retail Corp. d/b/a Starbucks, the standard for what employer statements qualify as lawful is significantly different. Instead of being deemed categorically lawful, an employer’s statements about the impacts of unionization on the employer-employee relationship will now be assessed on a case-by-case basis, guided by the pre-existing standard set forth by the U.S. Supreme Court in NLRB v. Gissel Packing Co, Inc. (1969). Under this standard, an employer’s communications must be either grounded in objective fact or predict negative consequences that would result from the employer’s own actions. Predictions which are not grounded in one of those two bases will be perceived by the NLRB as an unlawful “threat of retaliation based on misrepresentation and coercion.”
For example, an employer’s broad prediction that unionization will “necessarily foreclose employees’ ability to address issues individually with their employer” would not be lawful. In contrast, an employer may lawfully state that “the relationship that existed between the employees and the employer will not be as before.”
Impact on Employers
The new standard set forth in Siren Retail Corp. will apply only prospectively. Moving forward, employers should exercise a heightened level of caution when making statements or predictions about the potential effects of unionization on the employer-employee relationship.
For any questions regarding unfair labor practice claims, contact Nicole Elgin at 503-276-2109 or [email protected].
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