NLRB Adds Another Decades-Long Precedent to List of Overturned Decisions Under Biden Administration

December 11, 2024

Last month, the National Labor Relations Board issued a decision in Starbucks, Case No.: 19-CA-290905, that changed the standard for determining the legality of employer statements to employees, specifically with regard to changes in the way employees would be able to communicate with their employer if they voted to unionize. In doing so, the Board overruled its decision in Tri-Cast Inc., 274 NLRB 377 (1985), a nearly 40-year-old precedent that categorically found such employer statements lawful. This decision is nearly the twentieth precedential decision overturned by the employee-friendly Board under the Biden Administration.

The Old Tri-Cast Standard

In 1985, the Board issued its Tri-Cast decision, which changed the approach the Board takes when addressing statements concerning employees’ ability to address issues individually with their employer after unionization. There, the specific manager statement at issue was:

“We have been able to work on an informal and person-to-person basis. If the union comes in this will change. We will have to run things by the book, with a stranger, and will not be able to handle personal requests as we have been doing.”

The Tri-Cast Board found that there is no threat in a statement which explains 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 it was before, and that Section 9(a) of the National Labor Relations Act contemplates a change in the manner in which employer and employee deal with each other. For nearly 40 years following this decision, the Board has repeatedly found that employer statements that unionization would eliminate employees’ ability to address workplace issues individually with their employer were lawful.

The “New” Starbucks Standard

In its Starbucks decision, the Board disagreed with Tri-Cast and refuted the categorical protection that it gave employer statements on this topic. The statement at issue in the Starbucks case was similar to the one in Tri-Cast. In Starbucks, a manager told the employees:

“If … you want to give your right to speak to leadership through a union, you’re going to check off ‘yes’ for the election. If you want to maintain a direct relationship with leadership, you’ll check off ‘no.’ … So I want to be clear on that. That a third party comes in and speaks for you. And everything will be grounded, from my experience and my opinion through the lens of that [union] contract.”

The Board’s decision was primarily grounded in its view that the Tri-Cast Board ignored clear language in Section 9(a) of the Act. According to the Board, unionization does not prevent employees from bringing individual matters to the employer’s attention; the Act just mandates that the union, as exclusive representative of the employees, gets an opportunity for a seat at the table for the discussion, and it is up to the employee whether or not the union speaks for him. As a result, the Board overruled Tri-Cast and returned that analysis to the pre-Tri-Cast standard.

Under this standard, the content and context of such employer statements are analyzed on a case-by-case basis in accordance with the Supreme Court’s decision in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). To be deemed lawful, employer predictions about the negative impacts of unionization on employees’ ability to address issues individually with their employer “must be carefully phrased on the basis of objective fact to convey the employer’s belief as to demonstrably probable consequences beyond his control.” Put more simply, employer statements regarding prospective changes in the employer/employee relationship after unionization must be grounded in objective fact and must accurately reflect the law.

The Board ultimately determined this new standard should be applied prospectively in all future cases due to widespread employer reliance on the approach in Tri-Cast and the categorical protection it gave to such statements over the last 40 years. The Board reasoned that it would be unjust to apply this new standard to Starbucks’ conduct and render a statement that was lawful when it was made to be unlawful without notice.

Where We Stand Now

Statements regarding the consequences of unionization on employee/employer communications are now treated the same as all other employer statements concerning the consequences of unionization. Employers retain their protection under Section 8(c) of the Act to express their views to employees about unionization, but their statements must accurately convey what the Act allows or requires and be grounded in objective fact. Otherwise, they may be deemed unlawful threats.

In Starbucks, the Board noted that when an employer makes a statement regarding what the Act allows or requires, it must be measured against what the Act actually allows or requires. A statement that inaccurately conveys the law is not one “carefully phrased on the basis of objective fact” and may be deemed unlawful, even if the employer believed the statement to be accurate. As such, it is even more crucial for employers to familiarize themselves with the law and train their managers on what they can and cannot say.

If your company is faced with a unionizing campaign or you have questions regarding how you can lawfully communicate with your employees, please contact Gaetano Urgo at gurgo@dcamplaw.com or by telephone at (312) 995-7128.