On November 8, 2024, the National Labor Relations Board (“NLRB”) issued its decision and order in Siren Retail Corp. d/b/a Starbucks and Workers United Affiliated With Service Employees International Union, N.L.R.B., Case 19–CA02909005, ruling that employers are no longer categorically allowed to tell workers that unionization will negatively impact their relationship with management if the statements are not grounded in clear, objective facts and if the employer’s conveyed belief is influenced by its own actions. This decision has overturned the nearly 40-year-old precedent in In re Tri-Cast, Inc., 274 N.L.R.B. 377 (1985).
Tri-Cast v. Siren Retail Corp.
In 1985, the NLRB held in Tri-Cast that an employer made no threat, explicit or implicit, when it distributed a letter to its workers detailing how union organizing would negatively affect the relationship between workers and management. The NLRB concluded that the statements were “permissible campaign comments” and statements of objective facts relating to the “possible effects of unionization,” which did not violate Section 9(a) of the National Labor Relations Act (“the Act”)[1].
Under this standard, most employer statements about the impacts of unionizing have been considered broadly lawful. Siren Retail Corp. has now altered this standard, significantly increasing the scrutiny with which the NLRB analyzes such statements.
In 2022, during its mandatory meetings at Starbucks’s flagship shop in Seattle, the renowned coffee company: (1) told its workers that they would lose benefits if they joined a union (this statement was also memorialized in a Starbucks supervisor’s social media post); (2) allegedly stated that it would prioritize giving benefits to employees at its nonunionized shops over those employees working at its unionized shops; and (3) implied that collective bargaining could not redress the employees’ current inability to receive tips from customers’ credit card payments.
Following the standard set by the Supreme Court in NLRB v. Gissel Packing Co. (1969) 395 U.S. 575, the NLRB concluded that employer predictions of negative impacts from unionization “must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond [its] control.” Otherwise, it is “no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion.”
Thus, under this standard, the NLRB held that Starbucks’s conduct violated Sections 7[2] and 8(a)(1)[3] of the Act.
Takeaway for Employers
The decision provides that this standard will be applied prospectively to appropriately accommodate the reasonable reliance employers may have previously placed on Tri-Cast’s rule.
As this change brings higher scrutiny in this regard, it is essential for employers to carefully consider and construct any statements they make to employees regarding unionizing and its effects.
Contact a GRSM Employment Law attorney with any questions regarding how this new legislation may impact your business practice or current cases, or if you would like more information on the subject.
[1] Section 9(a) of the Act provides: “Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective- bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment.”
[2] Section 7 of the Act guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," as well as the right "to refrain from any or all such activities."
[3] Section 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7" of the Act.