The National Labor Relations Board (the “Board”) issued two decisions in recent days that substantially deviate from its prior decisions in Babcock & Wilcox Co., 77 NLRB 577 (1948) and Tri-Cast, Inc., 274 NLRB 377 (1985) relating to an employer’s ability to effectively campaign during union organizing in manners long held lawful.
In Siren Retail Corp. d/b/a Starbucks, 373 NLRB No. 135 (Nov. 8, 2024), the Board prospectively overruled its nearly 40-year precedent in Tri-Cast, Inc., casting doubt on whether employers will be able to speak to the impacts union representation has on the relationship between employees and management. In 1985, Tri-Cast held that such employer statements were categorically lawful under the National Labor Relations Act (the “Act”). On November 8, 2024, in Siren Retail, the Board reasoned that the purposes of the Act would be better served if the context and content of the employer’s statements were analyzed on a case-by-case basis, considering the employer’s predicted adverse consequences based on unionization.
Just days after Siren Retail, on November 13, 2024, in Amazon.com Services LLC, 373 NLRB No. 136 (Nov. 13, 2024), the Board ruled that captive audience meetings violate the Act, overruling Babcock & Wilcox Co., 77 NLRB 577 (1948). Captive audience meetings refer to mandatory workplace meetings during which an employer may express their views on unionization efforts and employees are required to attend. The Board reasoned that these meetings could interfere with employees’ Section 7 rights. Employers can still hold meetings with workers to discuss unionization efforts but must provide reasonable advance notice to employees of the subject or topic of the meeting, attendance at the meeting must be voluntary (meaning no adverse consequence for a worker’s failure to attend), and there will be no attendance records of the meeting.
These decisions kick off the Board’s final push following the outcome of this year’s election. Change is certain for the Board, however, as many positions are political appointments and President-elect Donald Trump’s incoming administration is currently in process of naming its nominees in advance of the upcoming inauguration. It remains to be seen whether the Board’s decisions this month will be reversed.
The cases are: Siren Retail Corp. d/b/a Starbucks and Workers Affiliated With Service Employees International Union, Case No. 19-CA-290905, 373 NLRB No. 135 (Nov. 8, 2024) and Amazon.com Services LLC and Dana Joann Miller and Amazon Labor Union, Case Nos. 29-CA-280153, 29-CA-286577, 29-CA-287614, 29-CA-290880, 29-CA-292392, and 29-CA-295663, 373 NLRB No. 136 (Nov. 13, 2024)
The legal issues impacting this topic are and will continue to be ever-changing (Employment Law in Motion!), and since publication of this blog post, new or additional information not referenced in this blog post may be available.
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