NLRB Limits Employer Speech

The National Labor Relations Board (NLRB) will no longer deem as lawful most employer statements about the impact of unionization on the relationship between employees and their employer. The change, which is the result of a ruling on Nov. 8, overrules nearly 40 years of precedent.

“I see this as yet another case that will be the subject of judicial review because of the board’s sudden departure from a rule that has been in place for decades,” said Jonathan Turner, an attorney with Mitchell Silberberg & Knupp in Los Angeles. 

We’ve gathered articles on the news from SHRM and other outlets.

Change in Legal Interpretation

Employers are no longer categorically allowed to tell workers that unionization will negatively impact their relationship with management, the NLRB ruled in a decision involving Starbucks Corp. (Siren Retail Corp. d/b/a Starbucks). The move overruled the NLRB’s 1985 decision in Tri-Cast Inc., where the board said that “there is no threat, either explicit or implicit,” in explaining to workers that organizing changes their dynamic with the company. 

The board said it was returning to the standard set in the U.S. Supreme Court’s 1969 NLRB v. Gissel Packing Co. Inc. decision. In that ruling, statements on the impact of unionization must be “carefully phrased on the basis of objective fact” about “demonstrably probable” consequences that are beyond the employer’s control.

Nonetheless, in Siren Retail Corp. d/b/a Starbucks, the NLRB cleared Starbucks of charges that it illegally told workers to vote against joining a union if they wanted to maintain direct communications with their managers. The board’s return to the Gissel standard applies prospectively only.

(Bloomberg Law)

FOE vs. TIPS

Traditionally, employers can share facts, opinions, and examples—sometimes referred to by the acronym FOE—about unions, but the recent ruling increases scrutiny about whether opinions are unlawful threats.

Companies cannot engage in TIPS, which is an acronym that stands for:

• Threats to employees based on their union activity.
• Interrogations of workers about their union activity or sentiments.
• Promises to employees to induce them to forgo joining a union.
• Surveillance—that is, spying—on workers’ union-organizing efforts or creating the impression of surveillance.

(SHRM)

NLRB Clamping Down on CEO Comments

Despite the general rule that employers may share facts, opinions, and examples, the NLRB has been clamping down on CEO speech. The board recently decided that former Starbucks CEO Howard Schultz violated the National Labor Relations Act by telling a pro-union worker that they could go work somewhere else if they were unhappy at Starbucks.

In response to the NLRB’s ruling, Emily M. Dickens, J.D., SHRM chief of staff and head of government affairs, stated, “At-will employment allows either party to end the relationship, as long as labor laws aren’t violated. Howard Schultz’s remarks reflect this principle: If an employee’s personal values or aspirations no longer align with the company’s, they have the right to seek employment elsewhere, just as the company has the right to foster a workforce that contributes positively to its mission.”

(SHRM)

Dissenting Opinion

NLRB Member Marvin Kaplan, a Republican, dissented in part in Siren Retail Corp. d/b/a Starbucks, objecting to the NLRB’s approach in Tri-Cast. He criticized the majority’s claim that they were “overruling Tri-Cast.” Kaplan emphasized the board’s finding that the employer’s statements did not constitute unlawful threats and stated that the issues in this case did not present an opportunity to overrule Tri-Cast.

(Ogletree Deakins via National Law Review)

How Long Might Democrats Control the NLRB?

How quickly the next administration of President-elect Donald Trump can turn labor law in a pro-management direction may depend on whether Chair Lauren McFerran, a Democrat, can win Senate approval for another five-year term. If the Senate, currently controlled by a thin Democratic majority, soon reconfirms her, Democratic board members would retain the board majority into 2026.

(Bloomberg Law)