Labor Board Tightens Limits on What Employers Can Say During Unionization Efforts

A Starbucks worker boards the Starbucks union bus after workers stood on the picket line with striking actors and writers in solidarity outside Netflix studios in Los Angeles on July 28, 2023. Mario Tama/Getty Images

The National Labor Relations Board (NLRB) issued a decision on Nov. 8 overturning a 40-year-old precedent that had allowed employers wide latitude in discussing how unionization might affect individual relationships between employees and management. The case involved Starbucks Corporation and Workers United, affiliated with the Service Employees International Union.

The NLRB reversed the 1985 Tri-Cast, Inc. decision, which had generally deemed employer statements about the impact of unionization on individual employee relationships as lawful.

This new approach aligns with a 1969 Supreme Court ruling in NLRB v. Gissel Packing Co., which states that employers can express their views about unionization as long as their statements are based on objective facts and do not contain threats or promises.

Moving forward, the NLRB said it will evaluate employer communications statements on a case-by-case basis, using the same standards applied to other potentially threatening or coercive remarks.

Employers must now ensure that any statements about the potential negative impacts of unionization are based on objective facts and do not amount to threats or promises. If an employer’s “prediction” regarding unionization impacts do not follow the new rule, it may be considered a threat of retaliation.

“The rule that we return to today brings greater consistency to the Board’s approach in evaluating potentially threatening statements,” NLRB Chairman Lauren McFerran said in a press release. “By evaluating employer predictions regarding unionization in a careful and case-specific manner, the Board better protects workers’ right to make a free and fair choice about union representation while respecting an employer’s prerogative to share their views in a non-coercive manner.”

The NLRB noted that the change will apply only to future cases, acknowledging that employers may have relied on the old Tri-Cast standard.

In the Starbucks case, the NLRB examined statements made by managers during mandatory meetings after the union filed for an election.

The NLRB found that Starbucks violated labor law by threatening employees with the loss of existing benefits if they chose to unionize, implying that collective bargaining would be futile, suggesting that unionized stores would be deprioritized and not receive new benefits, and making false statements about union membership and strike obligations—by incorrectly stating that all employees would have to join the union and participate in strikes.

Additionally, the NLRB ordered Starbucks to delete certain social media posts made by one of its supervisors that threatened the loss of benefits due to unionization.

In the order, the NLRB directed Starbucks to “direct its supervisor Elijah De La Vega to delete the February 14, 2022 Facebook posts” and to ensure compliance.

However, the NLRB did not find Starbucks in violation regarding managers telling employees that unionization would change their direct relationship with management.

The NLRB acknowledged that while such statements could influence employees, under the existing standard at the time, Starbucks did not violate the law in this specific instance. The new standard will apply to future cases.

NLRB member Marvin Kaplan dissented, arguing that the NLRB overstepped by overturning Tri-Cast in this case.

He contended that since Tri-Cast was a representation case and the current case is an unfair labor practice case, the NLRB lacked the authority to overrule the precedent in this context.

“It is not clear to me on what basis my colleagues believe that, even though they do not have the ability under Pergament to make any finding regarding objectionable conduct in the instant case, they have the ability to overrule Tri-Cast,” Kaplan wrote in his dissent.

He also argued that the majority’s decision to overturn Tri-Cast was “dicta”—statements not essential to the decision and therefore not legally binding.

Kaplan defended the Tri-Cast standard, stating that it “appropriately distinguishes noncoercive statements about some of the effects of unionization from threats.”

He warned that overturning Tri-Cast could “contravene the bedrock decisions in” three other landmark cases and place unfair burdens on employers when communicating with employees about unions.

Attorneys for Starbucks and Workers United did not respond to requests by The Epoch Times to comment on the decision.