ABSTRACT: The NLRB’s recent decision in Siren Retail Corp. d/b/a Starbucks overturned previous categorical protections for employer statements on the effects of unionization on employer-employee relations, and now requires these statements to be based in “objective fact.”

In Siren Retail Corp. d/b/a Starbucks, the NLRB ruled that is abandoning the Tri-Cast standard that had been in place for the past 40 years, and returning to the earlier Gissel Packing standard for determining if an employer’s statements in a mandatory meeting to discuss unionization violated Section 8(a)(1) of the NLRA.

NLRB Chairman Lauren McFerran stated she believes Board’s return to the Gissel standard will bring “greater consistency” to the way the Board evaluates employer statements about unionization and the potential effects.

Underlying Facts

The statements at issue in this case were made by management during a meeting that was called after the charging party (Workers United) petitioned for a representation election. In reference to the potential unionization, a manager for the employer stated “If you want to maintain a direct relationship with leadership, you’ll check off ‘no.’” The statements found to be in violation threatened that employees would lose already-existing benefits of employment, nonunionized locations would receive benefits over unionized locations, and that collective bargaining would not resolve employer’s inability to tip out employees from credit card payments.

Tri-Cast v. Gissel Standards

The existing standard was created in the NLRB’s decision in the Tri-Cast case in 1985, which the ALJ applied here. The Tri-Cast standard specifies that employer comments on the impact of unionization on employer/employee communication and relationships are “categorically lawful” and do not violate the NLRA. The ALJ determined and the Board affirmed that the manager’s statement regarding “maintaining a direct relationship with leadership” did not violate Section 8(a)(1) under the Tri-Cast standard that deems these statements “categorically lawful.”

While affirming the ALJ’s decision, the Board ruled that Tri-Cast will no longer apply going forward. NLRB General Counsel argued that statements threatening the loss of an existing employee benefit if employees elect to unionize should be considered unlawful, and the Board’s main criticism of the Tri-Cast categorical protection was that it is so broad that “almost any statement involving employees’ ability to pursue grievances individually is permissible”, thus discouraging employees from exercising their Section 7 rights.

The Board stated that they will use the Gissel standard from now on, which requires that employer statements about consequences of unionization be “carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control”; and that they not threaten employees’ existing rights and benefits. If an employer makes such statement implying adverse consequences as a result of unionization that are not “grounded in objective fact”, then it is considered unlawfully coercive and a threat of retaliation against employees.

Key Takeaways

Any Employer currently involved in a union organizational campaign must be aware of these significant new restrictions on permissible statements. The law has changed dramatically.

However, this and other recent Board rulings with a pro-employee emphasis may turn out to be relatively short-lived. On December 11, 2024, the U.S. Senate voted 49-50 against extending the term of incumbent NLRB Chair Lauren McFerran, which means that sometime in the first half of 2025, there will almost certainly be a Republican majority on the Board. (A vote in McFerran’s favor would have ensured a Democratic Board majority into mid-2026.) President Trump will also put in place a new NLRB General Counsel, and we anticipate that the new Republican Board and General Counsel will seek to quickly reverse various Biden-era NLRB rulings, including this one. Other likely targets include Atlanta Opera, where the Board narrowed employer rights to treat workers as independent contractors; Stericycle, which changed the standard for review of employer rules and policies; and Cemex, which broadened the circumstances in which an employer could be order to recognize a union without an election.

We will keep our readers informed of further developments, as the new Administration and soon-to-be reconstituted Board take hold.