In early November, the National Labor Relations Board (“NLRB”) issued a pair of decisions that reverse decades of precedent and establish new standards to evaluate the lawfulness of employer statements regarding unionization. Join us as we review the highlights and impact of these significant decisions.
Employer Statements on the Impact of Unionization
On November 8, the NLRB issued a decision in Siren Retail Corp d/b/a Starbucks overturning nearly 40 years of precedent established in Tri-Cast, Inc., 274 NLRB 377 (1985), which generally protected employer statements about the negative impacts of unionization on the employer-employee relationship based on the NLRB’s long-standing view that the relationship necessarily would change once employees opted for union representation. Following the Siren decision, the Board will use a case-by-case approach to determine whether such statements constitute unlawful threats or coercion.
In the Siren case, a supervisor told employees that unionization would result in the loss of certain existing benefits and the ability to address issues with their managers on an individual basis. Although the NLRB adopted an Administrative Law Judge’s finding that such statements did not constitute unlawful threats, a three-member majority prospectively overruled Tri-Cast, concluding that the decision was “poorly reasoned” and led to “categorically immunized employer campaign statements” that could reasonably be interpreted as threats. Under the new standard, employer statements regarding negative impacts from unionization must be based on objective fact as to probable consequences beyond their control. Those statements that are not based “solely” on known economic necessities – or predict negative consequences resulting from the employer’s own actions – will be considered unlawful threats of retaliation. To accommodate employers’ reasonable reliance on Tri-Cast’s categorical rule, the new standard will apply only to future cases without retroactive effect.
Captive Audience Meetings on Labor Organization
On November 13, the Board also ruled that captive audience meetings – specifically, those in which the employer expresses its views on unionization – violate Section 8(a)(1) of the National Labor Relations Act. In Amazon.com Services, LLC, the Board overruled Babcock v. Wilcox Co., 77 NLRB 577 (1948), which – for over 75 years – permitted employers to hold captive audience meetings during work hours to express their views on labor organization, so long as employees were not threatened or promised benefits to attend the meeting. Under the new standard, employers can no longer require attendance at such meetings, regardless of whether the intended message supports or opposes unionization.
To reach this determination, the Board explained that such meetings (1) interfere with an employee’s right to freely decide whether to attend or participate in a debate concerning union representation; (2) provide a mechanism for employers to monitor employees’ sentiments on unionization; and (3) lend a coercive character to the message of unionization by mandating attendance under threat of discipline or discharge. The Board clarified that an employer will be found to compel attendance if, under all circumstances, employees could reasonably conclude that (1) attendance is required as part of their job duties, or (2) failure to attend or remain at a meeting could result in adverse consequences. Additionally, the Board could find a meeting “compelled” if a manager or supervisor gives an express order to attend; or a supervisor, manager, or other agent includes the meeting on an employee’s work schedule.
In a bit of reprieve, the Board established a “safe harbor” under which a meeting will be considered lawful if the employer (1) notifies employees reasonably in advance that the employer will discuss their views on unionization, and (2) informs employees that (a) attendance is voluntary, (b) employees will not be subject to adverse consequences if they do not attend or remain at the meeting, and (c) no records of attendance will be kept. As in the Siren case, the new standard applies only to future cases.
Although the NLRB’s direction may shift upon the arrival of the Trump Administration in January 2025, employers should not expect a speedy reversal of either decision. Until then, employers should proceed with caution when communicating with employees about unionization. Employers also should continue to comply with applicable state or local laws with more restrictive requirements.
If you have any questions related to these decisions or their potential impact on your workplace, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100 or 619.292.0515.