Avoiding unionization has become more fraught with problems for employers. The National Labor Relations Board just announced a decision in Siren Retail Corp d/b/a Starbucks, overruling its prior decision in Tri-Cast, Inc., 274 NLRB 377 (1985) and clarifying the test that the Board will use to evaluate whether employer predictions about the impact of unionization on the relationship between individual employees and their employer are unlawful threats.
While Tri-Cast deemed most employer statements about the impact of unionization on the relationship between individual employees and their employer to be categorically lawful, moving forward the Board will analyze such statements under the same test it uses to evaluate what it considers other potentially threatening or coercive statements. That approach, which is grounded in the Supreme Court’s decision in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), mandates that – to be lawful – 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.” If such a prediction is not grounded in objective fact, or predicts negative consequences that would result from the employer’s own actions, it is “no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion.”
The Board made clear that this change in the governing standard will be applied prospectively only, to appropriately accommodate the reasonable reliance employers may have previously placed on Tri-Cast’s categorical rule. It remains to be seen if the results of the recent Presidential election will change the Board’s composition and position on employer statements but for now, it is the rule of the NLRB.
Should you have any union or employee issues, or any questions concerning this NLRB decision, please do not hesitate to contact me and the outstanding attorneys at Forchelli Deegan Terrana’s Labor & Employment Law Department at 516-248-1700.