When employees at a company express interest in forming a union, certain rules kick in that limit what a company can communicate to its workforce. One of the rules prohibits making threats against workers that state or indicate employees will face negative consequences from the company in the event they vote in a union. A recent case involving Starbucks highlights this labor law principle. 

At issue in the case were employees at the coffee giant’s flagship Seattle Roaster location. More than 100 workers at the site filed a union election petition in 2022. After the petition was filed, Starbucks initiated a communications campaign. One of the statements made by Starbucks during the campaign related to credit card tipping – something employees wanted as an available feature for customers. The company allegedly informed workers that Starbucks only could offer such a benefit versus it being a benefit that the union could negotiate into a collective bargaining agreement.

A dispute ensued and a National Labor Relations Board (NLRB) administrative law judge held this comment was a threat that unlawfully implied voting in a union would be futile. The judge also determined company statements that unionized employees may miss out on benefits being rolled out for non-union employees also constituted unlawful threats. Starbucks has appealed the decision and it is going to the NLRB for consideration.

When it comes to union organizing, Section 8(c) of the National Labor Relations Act (NLRA) vests employers with broad free speech rights to voice their opinions on unions to their workforces. The NLRA, however, also places limits on what employers can do if their employees express interest in forming a union.

Generally, companies cannot:

• Threaten employees based on their union activity

• Interrogate workers about their union activity, sentiments, etc.

• Make promises to employees to induce them to forgo joining a union

• Engage in surveillance (i.e., spying) on workers’ union organizing efforts (or create the impression of surveillance)

There is a lot of nuance within each of these categories, which can lead to missteps. If an employer violates the NLRA by engaging in these acts, it can negatively affect union election results and result in other penalties. Accordingly, this case serves as a reminder that employers need to be cautious when developing and implementing a communications strategy with their workforces regarding unionization.