On November 8, 2024, in Siren Retail Corp d/b/a Starbucks, the National Labor Relations Board (“NLRB”) tightened restrictions on what employers can say to workers about the impact of unionization. In making this ruling the NLRB overruled its 1985 decision in Tri-Cast, Inc., which held that most employers’ statements about the impact of unionization were categorically lawful.

Now, the NLRB will follow the test found in the Supreme Court decision of NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) to evaluate whether the statements are potentially threatening or coercive. Under the Gissel test, employer predictions of negative impacts on workers “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 prediction is not grounded in this objective fact, then it is considered an unlawful threat.

The statements at issue in Siren Retail Corp were:

• “If you want a union to represent you . . .  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”;” and
• “representation of a union is the rules of employment will then be grounded in a contract. And if it’s not in the contract, it’s not a conversation in my opinion that’s going to happen with leadership. We’ll be bound by the contract. So the union will be bound. And Starbucks will be bound. 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 the that contract.”

While the NLRB did not explicitly state that these statements would result in an unfair labor practice charge under the Gissel standard, it stated it “likely would.” Therefore, the NLRB decided that the new standard should be applied prospectively to take into account Siren Retail Corp’s reliance on the Tri-Cast approach, which would have made these statements lawful.

Given the November Presidential election, the composition of the NLRB will likely flip to a majority of Republican appointees. Therefore, it is possible that this ruling will be revisited, and potentially reversed, if an opportunity arises.