The National Labor Relations Board (NLRB) recently dropped several bombshells on private-sector companies. As General Counsel, it’s critical to understand and address the risks posed by these decisions. These rulings—the Starbucks decision overturning Tri-Cast, Inc. and the Amazon.com Services LLC decision restricting captive audience meetings—mark pivotal changes in how employers must train leaders and communicate with employees. While both are likely candidates for reversal under a future Republican-majority NLRB, they are the law today and will likely remain so for months.
Siren Retail (Starbucks): Overturning Tri-Cast and Redefining Employer Speech
In Siren Retail Corp. d/b/a Starbucks, the NLRB overturned its 1985 decision in Tri-Cast, Inc. This shift fundamentally changes how the Board evaluates employer statements about the effects of unionization on the employee-employer relationship. In the wake of this decision, any labor relations training or campaign communication tools your company uses will likely need heavy edits.
Historically, employers could categorically state that unionization would negatively impact the direct relationship between employees and management without further elaboration. Now, any statements like this will be evaluated on a case-by-case basis. Further, the Board now requires employers to explain Section 9(a) of the National Labor Relations Act (NLRA) whenever making such statements. Section 9(a) allows employees to bring grievances directly to management but imposes significant restrictions, including the union’s right to be present and the requirement that adjustments cannot violate labor agreements.
Implications
Increased Compliance Burden: Employers must now include detailed explanations of Section 9(a), complicating what was once a straightforward campaign message. You should thoroughly review any training materials, policies, or communication materials that discuss the “direct relationship.”
Training Requirements: Managers must understand and accurately convey these legal nuances to avoid unfair labor practice allegations.
Communication Challenges: Embedding legal disclaimers into messaging may reduce its impact and clarity, complicating efforts to inform employees about the realities of union representation.
Amazon: Redefining Employee Meetings
In another landmark decision, the NLRB ruled in Amazon.com Services LLC that requiring employees to attend meetings where the employer discusses unionization under threat of discipline or discharge violates the NLRA. This decision overrules the 1948 Babcock & Wilcox Co. precedent and reshapes the framework governing captive audience meetings.
Employers may still hold such meetings, but participation must now meet stringent conditions:
You'll need to announce meetings well in advance.
Attendance must be entirely voluntary.
Attendance tracking or associating participation with discipline or rewards is prohibited.
Implications
Employee Messaging is a Key Tool: This board decision seeks to inhibit employee free speech. Employee meetings are a staple of union campaigns. You should not be intimidated about communicating your position, but compliance is critical now.
Compliance Risks: Missteps in implementing these guidelines—such as tracking attendance—could result in legal challenges and reputational damage. Revisiting your strategy (and appetite for legal risk) around campaign communications is very important. Also, remember that some employers hold meetings on this subject during new hire orientation and other routine communications. You want to ensure you’re entirely up to speed when the subject of unions is brought up to employees and that your meeting strategy is clear for all these settings.
Alternative Communication Strategies: Employers may also consider pivoting toward one-on-one discussions, voluntary town halls, or digital engagement to communicate their message effectively.
Acknowledging the Likelihood of Reversal
These decisions represent significant victories for organized labor and will likely face reversal under a future Republican-majority NLRB. However, it takes time for a new President to get a Board majority seated or for appeals to wind their way to decisions. Employers will likely be stuck with these decisions for months or even years in the future. Relying on potential political changes is not a viable strategy for managing immediate risks. These rulings are the law today, and noncompliance can lead to substantial legal and financial consequences.
Recommended Actions for General Counsel Today
Update Training Programs: Ensure that managers and supervisors fully understand these rulings and can comply with the new requirements when communicating with employees.
Review Communication Policies: Audit existing company policies, campaign materials, and practices to ensure they align with the NLRB's new standards.
Develop Alternative Strategies: Shift focus to compliant methods of employee engagement, such as voluntary town halls or digital platforms.
Monitor Legal Developments: Stay informed about ongoing appeals and potential changes in the Board’s composition, which could impact these rulings.
Seek Legal Counsel: Proactively engage with outside labor law experts to craft compliant strategies and mitigate risk.
Balancing Current Compliance with Future Flexibility
While these decisions may be overturned in the future, they create immediate risks that cannot be ignored. General Counsel must adapt their strategies to comply with today’s legal landscape while remaining prepared to pivot when the rules inevitably shift again.
By taking proactive steps now, you can protect your organization and demonstrate your commitment to lawful and effective labor relations. These changes may be challenging, but with careful planning, they also provide an opportunity to strengthen your approach to employee engagement and communication.
