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The National Labor Relations Board (NLRB or Board) in a ruling issued November 8, 2024, held that employers may now be in violation of the National Labor Relations Act when they tell employees during an organizing campaign that unionization will end their ability to communicate directly with management.

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The case, <a href="https://aboutblaw.com/bgd1"><em>Siren Retail Corp. d/b/a Starbucks and Workers United affiliated with Service Employees International Union</em></a>, NLRB Case no. 19-CA-290905, involved allegations that Starbucks made multiple illegal threats to workers during an organizing drive at one of its facilities in Seattle.

At issue were statements made by a Starbucks manager indicating that employees should vote “yes” if they want to speak to management “through a union” and that bringing in a union means “a third party comes in and speaks for you.” It mattered not to the Board that the manager stated that these views were her opinion.

The Board held that informing employees that “unionization will end employees’ ability to communicate directly with management” unlawfully threatens employees that a beneficial practice – direct communication with management – will be lost if they vote in favor of a union. The ruling overturns forty years of precedent that employers had relied upon to inform employees that direct communication with management is negatively impacted by unionization.

Citing its 1985 <em>Tricast</em> decision, which this case overturned, the Board left intact an employer’s right to generally inform employees that unionization will change the relationship between management and employee, stating, “[g]enerally speaking, ‘[t]here is no threat, either explicit or implicit,’ in an employer statement that merely says 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.’”  However, the Board provides no guidance as to how an employer can answer the inevitable questions from employees that will flow from such a statement.

Under the case-by case approach the Board articulated, statements concerning the consequences of unionization on the relationship between individual employees and their employer, will be treated the same as all other employer statements concerning the consequences of unionization. That is, the Board will view them through the lens of the reasonable employee and whether such statements can be seen as a threat to end a benefit should employees elect union representation.

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For now, the ruling makes a significant change to employers’ organizing campaign playbook. Employers have long stated to employees during organizing drives that bringing in a union will limit, if not, end employees’ abilities to speak directly with management about issues. Given the election results in the Presidential race, the future of this decision, which expands further employee rights under the NLRA, is certainly one that a Trump appointed General Counsel may look to revisit. However, as this case dramatically changes how Employers act during an organizing drive, counsel should be sought with respect to all statement made by managers to employees with respect to how a union may change the employment relationship.

Michael Best stands ready and able to assist. If you have any questions about this ruling, please contact our team.

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NLRB Ends Employer Right to Tell Employees That Unionization Will Negatively Impact Their Relationship with Management

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