NLRB Narrows Employer Speech Rights

On November 8, 2024, the National Labor Relations Board (NLRB or Board) issued a decision changing the standard used since 1985 to evaluate certain statements made by employers regarding unionization. Specifically, the Board has overruled Tri-Cast, Inc., which permitted employers to speak about the impact unionization may have on their relationship with employees. In the future, employer predictions about the negative impacts of unionization on employees’ ability to address issues individually with their employer will be analyzed like all potentially threatening or coercive statements — on a case-by-case basis to determine if they are carefully grounded in objective fact to “convey an employer’s belief as to demonstrably probable consequences beyond its control.”   

In Tri-Cast, the Board declared lawful an employer’s explanation of how a union will change its relationship with its employees. Under the Tri-Cast rule, statements like: “union representation might limit direct access to management,” and “if the union came in, employees could no longer come directly to management with problems . . . [and they] would have to go to the union with any complaint” have been found lawful. 

At the General Counsel’s urging, Tri-Cast has now been discarded through a case called Siren Retail Corp. d/b/a Starbucks. The Board focused much of its analysis on Section 9 of the National Labor Relations Act which states that an employer can still adjust grievances of an individual employee or group of employees without the intervention of the bargaining representative provided the adjustment is not inconsistent with the collective bargaining agreement and the bargaining representative was given the opportunity to be present at the adjustment. The Board determined that Tri-Cast gave employers “carte blanche” permission “to misrepresent their obligations under [Section 9 of] the Act in order to deter employees from exercising their right to organize.” 

The Board clarified that an employer can state that if a union is selected, the relationship that existed between the employees and the employer will change because this is an “objectively true statement.” An employer cannot state, however, that if a union is selected, the employer will no longer be able to handle personal requests/complaints as it previously did because such statements threaten employees with a loss of an existing benefit as a consequence of unionization.  

This decision narrows employers’ rights to express their views, which, although permitted by Section 8(c) of the Act, are often ignored by the current Board. Nevertheless, there is some good news. First, the Board is applying its new position prospectively; as such, this new speech restriction will not apply to pending cases. Second, the Board denied the General Counsel’s request that it also outlaw an employer’s right to hold mandatory campaign meetings with its employees before an election. This item on the General Counsel’s wish-list was fortunately rejected by the Board without explanation or analysis. 

We will keep an eye on developments here as the General Counsel to the NLRB will absolutely change with the incoming Trump administration. While it may take some time to undo these types of decisions, the Board’s new General Counsel has the discretion to decide which employer statements are litigated as part of a complaint. KZA’s attorneys are well acquainted with the NLRB’s ever-changing landscape. If you are facing a union campaign or have questions about employer speech during a campaign, please contact a KZA attorney.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.