In a groundbreaking decision, the National Labor Relations Board (NLRB) just tightened restrictions on what employers can say to workers about the impact of unionization, overturning a 40-year-old standard and raising the bar for what is considered a lawful communication. In a case involving a national hospitality chain, the Board ruled on Friday that employers can no longer broadly warn employees that unionizing could harm their direct relationship with management. Instead, such statements must be strictly fact-based, reflect outcomes beyond the employer’s control, and avoid any hint of coercion or threats. Does this decision signal a new era in union-related discourse? Or will it quickly be scrapped by the new administration as soon as January? This Insight will tell employers what you need to know about this new case, what it means for your operations, and the five things you should do to ensure you are in compliance.
Story of the Case and Key Findings
This pivotal decision arose from a case involving a national hospitality chain where managers allegedly made statements suggesting that unionizing could strain employees’ direct relationships with management and potentially lead to benefit changes. Managers reportedly implied that unionizing would complicate communication with upper management and could lead to reduced or terminated benefits. One manager urged employees who wanted a “direct relationship with leadership” to reject the union vote.
- An NLRB decision from 1985 – Tri-Cast – allowed similar statements so long as they didn’t explicitly or implicitly threaten employees.
- But the NLRB’s current Democratic majority just found these statements problematic and overturned that 40-year-old precedent, determining that statements about unionization impacts must now be held to a higher standard.
- According to the NLRB, the 1985 Tri-Cast decision “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.” By taking this new stance, the Board emphasized that employer statements suggesting negative consequences from unionization can be perceived as implicit threats, even if not explicitly stated.
- The Board further highlighted that such warnings can subtly pressure employees to avoid unionizing out of fear of retaliation or loss of direct managerial access. As NLRB Chairman Lauren McFerran explained, the goal of the revised standard is to “protect workers’ rights to make free choices about union representation, while ensuring employers can still express their views non-coercively.”
New Standard
The NLRB’s decision represents a dramatic shift in how the Board will view employer communications about unionization. By overturning Tri-Cast, the Board has set a stricter standard that requires employer statements about union impacts to be rooted in objective facts and likely outcomes beyond the employer’s control. According to the NLRB, this new standard aligns with the Supreme Court’s 1969 decision in NLRB v. Gissel Packing Co., which allows employer predictions about union impacts only if they are fact-based and free of coercion.
Silver Lining: Only Forward-Looking Standard
If there’s a silver lining for employers it’s that the Board emphasized that this standard will apply only to future cases, allowing past communications under the Tri-Cast standard to stand without retroactive penalties – which is less common for NLRB decisions which are presumptively retroactive.
New Standard Here to Stay? Or About to Be Quickly Washed Away by a New NLRB?
Employers can’t ignore the fact that this decision was issued the same week Donald Trump was re-elected as President. He’ll assumedly steer the Board toward a more business-centric philosophy by appointing a majority of conservative Board members. Given that reality, should you go all-in to rework your policies to comply with this new standard, ignore it altogether given how confident you might feel it will soon be overturned, or somewhere in between?
Make sure you understand the lay of the land before you make your decision.
- What employers need to realize is that the Biden-appointed NLRB Board members may remain in the majority through 2026, which means it’s quite possible that we will continue to see labor-friendly positions remain intact for the next several years. Even if Trump takes the expected step to terminate the current NLRB General Counsel just as Biden did on his first day in office, a new GC wouldn’t be able to stop the Board from continuing to issue decisions such as these well into his second term of office.
- But what if Trump breaks precedent by terminating Democrat-party Board members without apparent cause just so that he could quickly stack the Board with his preferred appointees? We’d be in unchartered waters at that point. Opponents would argue that violates the National Labor Relations Act (NLRA), but this argument is already gaining traction in lower federal courts. It might take some time for the courts to weigh in on such a maneuver. Any Board decisions made during that period – such as wiping away decisions like this one – could be susceptible to a rapid reversal if courts eventually disagree with such a move.
Bottom line: you should take your risk tolerance into account before establishing your new position in close consultation with your FP labor counsel.
Best Practices for Employers to Comply with the New Standard
If you choose to immediately comply with this stricter standard to minimize NLRB scrutiny, here are five best practices you should consider:
- Base Statements on Objective Facts: You should ensure that all union-related statements are grounded in verifiable facts, avoiding any language that implies employer-driven consequences or control over outcomes.
- Avoid Generalizations or Speculative Language: Make sure you frame any predictions carefully, steering clear of vague or broad statements that could be perceived as coercive or threatening.
- Train Managers and Supervisors: Provide managers with clear guidelines and training on lawful communication practices, ensuring they understand the limitations set by this new standard.
- Regularly Update Communication Policies: Regularly review and update employee communication policies, particularly on union discussions, to keep up with evolving NLRB standards and rulings.
- Consult Legal Counsel for Unionization Messaging: Work with your FP labor counsel to create compliant messaging strategies, minimizing risks under the new, more stringent NLRB standards.
Conclusion
We will continue to monitor these developments and provide updates as necessary. Make sure you are subscribed to Fisher Phillips’ Insight System to receive the most up-to-date information. If you have questions on how these developments may impact your organization and workforce, please contact your Fisher Phillips attorney, the authors of this Insight, or any member of our Labor Relations Practice Group.
About the authors:
Todd Lyon is the co-chair of the firm’s Labor Relations Practice Group and practices throughout the West Coast. He has been a labor lawyer for over 25 years, representing public and private sector employers in labor negotiations, collective bargaining, grievance and interest arbitrations, strikes/lockouts, relocation and closures, work jurisdiction disputes, and other litigation involving employment law and benefits.
Todd formerly represented labor organizations in both Chicago and Seattle. Drawing from this union-side experience, Todd provides a unique perspective to the advantage of his employer clients. His practical and efficient approach allows him to help clients reach their goals without creating a wake of destructive relations.
Steve Bernstein is a distinguished labor relations attorney, representing employers in all facets of traditional labor and employment law. Steve co-chairs the firm’s nationwide Labor Relations Practice Group and serves as Regional Managing Partner of the firm’s Tampa office.
Over the past three decades, Steve has built an impressive practice dedicated to representing employers of all sizes in both the public and private sectors from the onset of union organizing and representation elections through the process of collective bargaining, grievance arbitrations, picketing activity, strikes and other work stoppages, and ensuing labor litigation before the National Labor Relations Board and the federal courts.
Joshua Nadreau is a labor and employment litigation attorney in the Boston office and Vice Chair of the Labor Relations Group.
Working with clients in New England and throughout the country, Josh routinely advises and represents clients in collective bargaining, arbitration proceedings, and before state and federal administrative agencies. His litigation practice focuses on class and collective wage and hour litigation. Josh also advises clients on compliance with state and federal leave laws, restrictive covenants, and matters concerning allegations of employment discrimination.