NLRB Tosses 40-Year Stance on Manager Unionization Threats (1)

Employers are no longer categorically allowed to tell workers that unionization will negatively impact their relationship with management, a split National Labor Relations Board ruled, overturning a nearly 40-year-old precedent in a case against Starbucks Corp.

The coffee giant made a series of illegal threats to its workers during a union election drive at its Seattle Roastery, the board ruled Friday. It’s the latest in a series of board decisions against the company as it hashes out with Starbucks Workers United a framework for bargaining at over 500 cafes nationwide.

But the board’s Democratic majority cleared Starbucks of charges that it illegally told workers to vote against joining a union if they wanted to maintain direct communication with their managers.

In doing so, it nevertheless altered the standard for determining the legality of these statements going forward—tossing the NLRB’s 1985 ruling in Tri-Cast Inc., which said “there is no threat, either explicit or implicit,” in explaining to workers that organizing changes their dynamic with the company.

That ruling “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 said in its first precedential ruling since the nation voted to send former President Donald Trump back to the White House. The NLRB’s current Democratic general counsel and board majority could be replaced by Trump in the coming months.

Return to Gissel

In replacing Tri-Cast, the board said its returning to the standard set in the US Supreme Court’s 1969 NLRB v. Gissel Packing Co. decision, which requires statements on the impact of unionization to be “carefully phrased on the basis of objective fact” about “demonstrably probable” consequences that are beyond the employer’s control.

If those statements aren’t grounded in fact or predict negative consequences from actions within the employer’s control , this could then cross into “a threat of retaliation based on misrepresentation and coercion.”

“Even if it constitutes a permissible construction of the Act, Tri-Cast was poorly reasoned when it was decided, and its later application has categorically immunized employer campaign statements that, based on their content and context, could reasonably be understood to threaten employees with the loss of an established workplace benefit,” the majority said.

Friday’s ruling mostly affirms the findings from a February 2023 decision from Administrative Law Judge John Giannopoulos.

Giannopoulos ruled that Starbucks made a series of illegal threats to its workers by telling them it would be futile to join a union and threatening to reduce or end benefits.

Managers also told employees that “if you want to maintain a direct relationship with leadership, you’ll check off no,” referring to the unionization vote.

NLRB General Counsel Jennifer Abruzzo argued to the ALJ that the vague statement could lead a “reasonable employee” to believe they would lose their right to speak with managers about workplace issues. Giannopoulos struck this charge down in his 2023 ruling, saying that it was a legal statement under Tri-Cast.

Prospective Application

The board held that Starbucks’ comments to workers about the impact of unionization on their relationship was lawful, making the rare move to withhold the new standard from the case at hand.

To find Starbucks liable for its statements, the board would have to find a National Labor Relations Act violation “based on speech that was clearly lawful at the time of utterance,” it said.

“It would amount to a manifest injustice to apply the new standard in this case, and prospective application is the more appropriate course,” the majority said. “Although the issue is close, we think that future application of the standard we reinstate today will sufficiently promote the policies of the Act while giving appropriate weight to the reasonable reliance employers have previously placed on Tri-Cast’s categorical rule and avoiding unjust results.”

Marvin Kaplan, the board’s only Republican board member, argued in dissent that the majority shouldn’t speculate on issues not presently before the board.

“I am not aware of any case establishing that it was appropriate to change the law prospectively without actually applying the law to the present case and determining that such application would create a manifest injustice,” he said. “My colleagues are attempting to use this case to change the law even though they have not shown that the change in law would have any effect whatsoever on the facts presented in the case before us.”

The NLRB ordered Starbucks to cease all unlawful activity and delete Facebook posts from one of its managers.

Starbucks spokesperson Jay Go-Guasch said in an emailed statement that the company was reviewing the decision but remained focused on training managers to “ensure respect of our partners’ rights to organize,” and on the framework negotiations.

Starbucks was represented by attorneys from Littler Mendelson PC. The union was represented by attorneys from Barnard Iglitzin & Lavitt LLP.

The case is Siren Retail Corp. d/b/a Starbucks, N.L.R.B., No. 19-CA-290905, 11/8/24.