Hunton Employment & Labor Perspectives

Late last week, the National Labor Relations Board (“Board” or “NLRB”) issued a decision in Siren Retail Corp. d/b/a Starbucks, 373 NLRB No. 135 (2024), which overruled the nearly 40-year-old decision in Tri-Cast, Inc., 274 NLRB 377 (1985). Consistent with the decision in ­Tri-Cast, the Board acknowledged that the National Labor Relations Act (“NLRA”) “contemplates a change in the manner in which employer and employee deal with each other.” The NLRB nonetheless opined that the decision in Tri-Cast and its progeny “erred in deeming categorically lawful nearly any employer statement to employees touching on the impact that unionization would have on the relationship between individual employees and their employer.”

The Board set forth a new standard to evaluate the legality of manager statements about the impact that unionization can have on employees’ abilities to address issues directly with their employers.  According to the new standard, “to be deemed lawful, employer predictions about the negative impacts of unionization on employees’ ability to address issues individually with their employer ‘must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probably consequences beyond his control.’” In articulating the new standard, the Board borrowed select words from the U.S. Supreme Court’s decision in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)—a decision that did not involve a statement about employees’ abilities to address issues directly with management. The NLRB further examined section 9(a) of the NLRA in its analysis, but limited its focus to just some language set forth in that section of the statute.

The Board will apply the new standard, which is ripe for legal challenge, on a prospective basis.