The National Labor Relations Board issued a decision on November 8, 2024 in which it overruled a 1985 decision setting a test by which employer statements about unionization would constitute unlawful threats. In a union campaign to win bargaining rights, it is common for the employer to speak against unionization, usually by predicting negative outcomes if the union prevails. While an employer has the right to express its opinion, when an employer predicts negative impacts arising out of a union win, for such statement to be lawful, they “must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond [its] control.” In other words, the prediction must be based upon objective facts. If not based upon objective facts, such predictions will run afoul of the law.
This case was decided in Siren Retail Corp d/b/a Starbucks. Should you have any questions regarding employer statements during a union campaign, contact Noah Jordan at 412-720-9586.