On November 8 and November 13, 2024, respectively, the National Labor Relations Board (“Board” or “NLRB”) issued a pair of decisions that impose significantly tighter restrictions on how employers may communicate with employees regarding unionization. Employers (especially those with non-union or only partially unionized workforces) should take careful note of these new legal standards, as they overturn legal precedents in place for decades on which employers who wish to remain union-free have long relied.

Employer Statements Regarding Impact of Unionization on Relationship with Employees are No Longer Categorically Lawful

On November 8, the Board overturned its 1985 decision in Tri-Cast, Inc. under which employers had been afforded wide latitude to make statements regarding the negative impact that unionization would have on the relationship between individual employees and their employer. Such statements are often made by employers either during union organizing campaigns or in employer handbook policies with the aim of dissuading employees from unionizing. For example, employers have often asserted that once employees have a union representative, the employer will no longer be able be able to resolve employee concerns directly.

Now, under Siren Retail Corp. d/b/a Starbucks, the Board is taking a narrower view of the legality of such statements. To be lawful, employer predictions about the negative impacts of unionization on employees’ ability to address issues individually with their employer must be based on objective fact and involve changes outside of the employer’s control. Such statements will be analyzed on a case-by-case basis to determine their legality.

In reaching this decision, the Board relied on Section 9(a) of the National Labor Relations Act (Act), which allows employees to present grievances to employers directly and have them adjusted, so long as the adjustment is not contrary to the collective bargaining agreement and the union is provided an opportunity to be present for the adjustment. Specifically, the Board held that where an employer tells employees that choosing to be represented by a union will prevent the employees from addressing issues directly with the employer, the employer potentially violates Section 8(a)(1) of the Act in that such statements may constitute a coercive threat to retaliate against employees by denying their rights under Section 9(a). Accordingly, the Board further asserted that its new rule does not run afoul of Section 8(c)’s protection of employer statements that, “contain[] no threat of reprisal or force or promise of benefit.”

In a minor win for employers, the new Siren Retail standard will only be applied prospectively, with the Board acknowledging that employers have come to rely on the overturned approach outlined in the Tri-Cast, Inc. decision over the last 40 years in discussing the potential consequences of unionization with their employees.

Otherwise, the decision leaves employers with more questions than answers as to how it will be applied moving forward, particularly with significant changes to Board leadership—and enforcement posture— likely to come shortly after inauguration day.

NLRB Bans Mandatory “Captive Audience” Meetings

On November 12, in yet another reversal of a longstanding precedent, the Board overturned its 1948 Babock & Wilcox decision for Amazon Services, LLC and ruled that employees may no longer be mandated to attend so-called “captive audience” meetings. In reaching this decision, the Board reasoned that requiring employees to attend meetings at which the employer shares its views on unionization may “interfere with and coerce” employees in the exercise of their right to unionize under Section 7 of the Act, “including the right to decide whether, when, and how they will listen to and consider their employer’s views concerning th[e] choice [to unionize].” The decision does not prohibit employers from conducting similar meetings, provided that they are truly voluntary.

The Board went on to outline a set of criteria or “safe harbor” that employers may rely upon to ensure that employee meetings are considered voluntary and lawful. First, the employer must inform its employees in advance of the meeting that the employer intends to express its views on unionization at a meeting where their attendance is voluntary. Employers must also clearly explain that employees will not experience adverse consequences, such as discipline or discharge, for failing to attend the meeting or for leaving the meeting early. Lastly, the employer must not keep a record of attendance, absence, or early departure from the meeting.

Notably, in additional commentary, the Board also stated that if a meeting is included on an employee’s work schedule, it would not be considered voluntary. While not listed as a safe harbor criterion, employers would be well advised to observe this requirement as well. The Board further made clear that, regardless of other circumstances, an “order” from a supervisor or manager to attend a meeting would render it involuntary and unlawful.

At first glance, the safe harbor provision and the Board’s additional commentary appear to provide a welcome measure of clarity for employers. But in application many employers may find the safe harbor criteria (and the ruling generally) difficult to apply from a practical standpoint. For example, if employees choose not to attend a meeting, their absence will be apparent to supervisors as they will presumably be performing their normal duties during that same time. The performance of those duties may inadvertently create a record that they did not attend. Similarly, if meetings were held at the end of the workday, and employees who wished not to attend were allowed to leave work early, their early punchout would likewise create a “record” of their non-attendance.

Employer Takeaway – Plan to Comply

In the long term, the upcoming change in presidential administrations is likely to result in these decisions being reversed, or at least enforced less aggressively by a Trump-appointed General Counsel (i.e., the NLRB’s chief attorney responsible for enforcing the Act). But the timing of any such changes is far from clear, and it could be years before the Board addresses these new precedents.

In the meantime, these two decisions pose significant compliance challenges for employers. Among other things, under current Board precedent regarding union election petitions, an employer who violates these new rules could be forced to recognize and bargain with a union even without the union winning a secret ballot election. Given the challenge of parsing their practical impact, employers—and particularly those with active union campaigns—should consult with labor counsel for guidance on compliance and review of handbook policies that may be impacted.

To ensure compliance, please contact Emmanuel Boulukos, Jotionette L. Jones, or any member of the Ice Miller Workplace Solutions team.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.