HR Legalist

Parting Shots—President Bidens’s NLRB Again Overturns Bedrock Labor Law Principles

In November, the current National Labor Relations Board (“NLRB” or “Board”) continued its mission of overturning long held principles of labor law by overruling decades old decisions that helped employers educate employees during organizing campaigns about the realities of unions and working in a union environment. In Siren Retail Corp. dba Starbucks, NLRB, Case 19-CA-290905, (November 8, 2024), the Board increased scrutiny of employer statements to workers about a union’s impact on the employees and workplace and said certain statements by managers may violate the National Labor Relations Act (“NLRA”). In Amazon.com Services, LLC, NLRB, Case 29-CA-280153, (November 13, 2024), the Board held that “captive audience meetings” violate the NLRA.

In Siren Retail Corp. dba Starbucks, the 3-1 NLRB majority overruled a nearly 40-year-old decision in Tri-Cast, Inc., 274 NLRB 377 (1985). In Tri-Cast, the Board ruled that most employer statements about the impact of unionization on the relationship between employees and employers are categorically lawful. Accordingly, employers had wide discretion to inform employees about the realities of working in a union environment and employers would not violate labor law by telling workers that they would not be able to raise complaints directly to their managers if they formed a union. However, in Siren Retail Corp. dba Starbucks, the majority stated that Tri-Cast was “poorly reasoned when it was decided,” and that in application, it has “categorically immunized employer campaign statements, that based on their content and context, could reasonably be understood to threaten employees with the loss of an established workplace benefit.”

Though it is objectively true that unionization changes the relationship between workers and managers, the Board majority reasoned that certain statements can be unlawfully coercive if they amount to a threat to eliminate a beneficial practice.  Under the newly announced standard, employers can express their “predictions” that having a union would make it harder for workers to solve issues directly with managers, but only if these statements are fact-based and “carefully phrased” to “convey an employer’s belief as to demonstrably probable consequences beyond his control.” What this means exactly is unclear. The majority stated that when an employer “contradicts Section 9(a) by asserting that an existing practice of permitting individual employees to address their issues with management must end,” it makes an illegal threat. The Board did not apply this new standard to Starbucks but indicated it would apply it going forward in determining when employer “predictions” about the downsides of unionizing become illegal threats.

In Amazon.com Services, LLC, the same 3-1 majority overruled a 76-year-old decision called Babcock and Wilcox Co., 77 NLRB 577 (1948), which held that captive audience meetings do not violate the NLRA. Overruling this precedent, the Board now finds these meeting to be per se unlawful.

Captive audience meetings are meetings that employees are required to attend under threat of discipline and at which the employer can educate employees about unions when a particular union is seeking to represent the employees and what it would be like working in a union environment. The majority held that making such meetings mandatory violates Section 8(a)(1) of the NLRA, which forbids employers to “interfere with, restrain, or coerce employees in the exercise” of their labor rights. The majority decided that these meetings interfere with workers’ labor rights in three ways: they trample on workers’ rights to choose not to join the labor debate, they give employers a chance to observe workers’ union sentiments, and they inhibit workers’ freedom by demonstrating the employer’s power over them.

Under the new standard, while an employer may still lawfully hold meetings to express its views on unionization, they must:

• (1) provide reasonable advance notice of the subject of any such meeting,
• (2) explain that attendance is voluntary with no adverse consequences for failure to attend, and
• (3) that no attendance records of the meeting will be kept.

Notably, this new standard will be applied prospectively, to accommodate the reasonable reliance employers previously placed on Babcock.

Both decisions come in the final days of the Biden Presidency. When President-Elect Donald Trump takes office, we can expect a shift towards more employer-friendly decisions; however, the exact nature of the change remains to be seen. As always, we will continue to monitor developments in this ever-changing area of the law. In the meantime, readers with further questions or in need of specific guidance should contact an Obermayer attorney.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.