The National Labor Relations Board overturned nearly 40 years of precedent with the recent decision, Siren Retail Corp d/b/a Starbucks, which clarified that most employer statements on the company impact of unionization are considered “unlawful threats.”
The new NLRB decision overrules the 1985 case, Tri-Cast Inc., 274 NLRB 377, which originally considered statements from employers to their employees on unionization to be mostly lawful.
“The rule that we return to today brings greater consistency to the board’s approach in evaluating potentially threatening statements,” NLRB chairman Lauren McFerran said in a statement. “By evaluating employer predictions regarding unionization in a careful and case-specific manner, the board better protects workers’ right to make a free and fair choice about union representation while respecting an employer’s prerogative to share their views in a non-coercive manner.”
Moving forward, the board said it will be making decisions on whether company communications about unionization are allowed based on whether the company “carefully phrases” the communication “on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond [its] control.” If an employer’s statements about unionization do not pass this test, then it will be considered “a threat of retaliation based on misrepresentation and coercion.”
Under this new ruling, certain communications available via the Starbucks website on unionization, Starbucks One, could potentially be disallowed, though the NLRB has not specifically referred to this website as a violation.
"This ruling unfairly applies a new legal standard on Starbucks retroactively, which the NLRB should not do. We are considering our next steps," a Starbucks spokesperson said in a statement.
This ruling follows recent NLRB precedent in rulings involving the Starbucks unionization cases. Last month, the NLRB affirmed a previous ruling that former CEO Howard Schultz had violated labor laws by telling a union-supporting employee, “if you’re not happy at Starbucks, you can go work for another company,” calling it an “implicit threat.”
While this decision was a win for Starbucks employees, the Supreme Court ruled in favor of Starbucks earlier this year in a dispute between the coffee chain and the National Labor Relations Board over the termination of seven employees in Memphis, Tenn., finding that courts must apply the traditional four-factor injunction test, rather than the two factors that were originally applied. The ruling likely has larger implications for unions nationally.
The most recent employee-friendly decisions made by the National Labor Relations Board could change again under a new conservative presidential administration after President-elect Donald Trump is assumes office in January.
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