NLRB Nixes Key Employer Talking Point in Union Campaigns

The Board reversed 40 years of precedent and ruled that employers likely violate labor law when they tell workers during union election campaigns that the union would get in between employees and management.

Background: In 1985, the Board in Tri-Cast, Inc. established that employers may lawfully discuss how unionization would fundamentally change the relationship between workers and management, including eliminating an employee’s ability to address workplace issues directly and individually with the employer.

Changing the rules: In a new decision, Siren Retail Corp., the Board  overturned Tri-Cast, Inc. and its presumption that most such statements are lawful. 

• Under the Board’s new standard, “statements that broadly predict that unionization will necessarily foreclose employees’ ability to address issues individually with their employer…amount to an unlawful threat of retaliation” and are therefore unlawful. 

• Employers “must carefully phrase their predictions about the consequences of unionization on the basis of objective facts.” Translation: Don’t say anything about the union getting in between employees and management (or anything at all!)

As Roger King, Senior Labor & Employment Counsel for HR Policy Association puts it, “Talking about the union impacting direct dealings between employees and management is one of the most frequently and effectively used talking points during union campaigns.”

Why it matters: That talking point will now, in nearly all cases, be considered unlawful by the current Board. Employers and their supervisors and front-line managers will need to be extraordinarily careful when talking to employees about the consequences of unionization.

What’s next: The current Board will work quickly to push everything they can across the finish line before they lose their democratic majority at the end of next year. Employers can expect a deluge of precedent-changing cases like the one above over the next few months.

• Issues to keep an eye on: Arbitration clauses, non-compete agreements, damages for bad faith bargaining, union access to employer property and technology, and workplace surveillance, among many others.