NLRB Restricts Employers’ Ability to Comment on the Impact of Unionization

In yet another case that upends decades-long precedent, the National Labor Relations Board issued a decision that significantly limits the ability of employers to make statements about the potential impact of unionization in the workplace.

In 1985, the Board issued Tri-Cast, Inc., under which most employer statements about the impact of unionization were categorically deemed to be lawful. However, in Siren Retail, the current Board has now overruled that case and asserted that it will apply another existing test, set forth in the 1969 Supreme Court case of NLRB v. Gissel Packing Co., which is used to assess other potentially threatening or coercive statements. Thus, the Board now asserts that the content and context of such statements must be analyzed on a case-by-case basis, and “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 probable consequences beyond his control.’” In applying this new test, the Board found relatively common statements that employee interactions with leadership would be “bound by the contract” and that a third party (the union) would speak for the employees to leadership to be unlawful.

Acknowledging the seismic effect of this ruling, the Board stated that it would apply only prospectively. And this case will have a significant impact going forward on what employers may say to employees about the effects of unionization on the relationship between the employees and management. What was previously allowed will no longer be permitted, and employers should consult with counsel and train managers on how to respond to employee questions about the impact of unionization.

Under the Biden administration, the Board has moved aggressively to reverse many long-standing precedents in order to facilitate unionization, and this is just another instance of that focus, along with the recent ruling that captive audience meetings (i.e. where employers hold mandatory meetings to discuss their views on unionization) are unlawful, as we discussed in a November 22, 2024 blog post. The Biden Board’s efforts, however, have not always been received favorably by the courts, and certainly, with the upcoming change in administration, we can expect many of these positions to swing back the other way.