[Co-Author: Julian Owens, Law Clerk]
On November 8, 2024, the National Labor Relations Board (“NLRB” or the “Board”) ruled that employers can no longer broadly warn employees that unionizing may strain or negatively impact their direct relationship with management.[1] In doing so, the Board overturned over forty years of precedent, set by Tri-Cast, Inc., 274 NLRB 377 (1985), in which the Board deemed “categorically lawful” nearly any statement from employer to employee concerning the impact that unionization would have on individual employer-employee relationships.
Through its decision, the Board reinstated prior Supreme Court precedent, which found that to be lawful, an employer prediction about the negative consequences of unionization must be based in objective fact that conveys an employer’s belief of probable consequences to unionization that are beyond the employer’s control.[2] Going forward, the Board will now consider, on a case-by-case basis, whether a “reasonable employee” could view their employer’s statements as a threat to take away a benefit if they selected representation.
Of note, however, is that this comprehensive ruling came down the same week that Donald Trump was re-elected as President. Like his predecessor, Joe Biden, Trump is expected to terminate the sitting NLRB General Counsel upon the assumption of his duties as President, and there is no doubt that we will come to see a newly constituted, Trump-appointed NLRB that is likely to be less labor-friendly in the future. However, the Biden-appointed NLRB members may very well hold a majority on the Board through 2026 and continue issuing similar decisions until then.[3] In light of this, it cannot be ruled out that Trump may take an unprecedented path and terminate those Biden-appointed Board members without cause to load the Board with his own politically-aligned appointees.
Although the return to the Tri-Cast standard may be reversed soon, until then, employers may be subject to potential election objections, unfair labor practice charges, and complaints over written and verbal statements previously lawful for at least forty years. As such, employers are advised to avoid union-related communications that are overly broad or speculative and may be perceived as coercive or threatening. Instead, it is recommended that any union-related statements from employers to employees are carefully phrased and any predicted consequences are grounded in objective fact beyond the employer’s control.
[1] Siren Retail Corp. d/b/a Starbucks, 373 NLRB No. 135 (2024).
[2] NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
[3] Lynn Rhinehart, et al. The Biden Board: How President Biden’s NLRB Appointees Are Restoring and Supporting Worker’s Rights, Economic Policy Institute (May 1, 2024), https://www.epi.org/publication/bidens-nlrb-restoring-rights/#full-report.
