On November 8, 2024, the National Labor Relations Board (“NLRB”) issued a decision in Siren Retail Corp. d/b/a Starbucks, throwing out an almost 40-year-old rule that categorically allowed employers to tell their employees how unionization will impact the employer-employee relationship. The NLRB’s new standard will apply to cases filed after November 8, 2024.

The Prior Standard. In 1985, the NLRB decided in Tri-Cast, Inc. that employers may lawfully tell their employees that, when they unionize, their relationship will change, and the employer will no longer be able to address individual grievances once the union is involved. Since that time, Tri-Cast, Inc. has been broadly applied as a categorical rulethat explaining the negative consequences of unionization is not an unlawful threat, so long as the employer’s statements are truthful.

The Starbucks Case. In Siren Retail Corp., the NLRB criticized the Tri-Cast, Inc. standard because it “categorically immunized nearly any employer statement to employees touching on the impact that unionization would have on the relationship between individual employees and their employer” when such statements “could have a reasonable tendency to coerce employees.” Although the NLRB kept the Tri-Cast, Inc. standard for the Siren Retail Corp. case to avoid an unfair result, it prospectively overruled Tri-Cast, Inc. for all cases filed after November 8, 2024.

The “New” Standard. The NLRB’s decision in Siren Retail Corp. effectively tosses out the Tri-Cast, Inc. standard in favor of returning to an even older approach set forth in NLRB v. Gissel Packing Co., a case decided by the United States Supreme Court in 1969. Under the Gissel rule, an employer’s statements concerning the potential impact of unionization are evaluated on a case-by-case basis and must be “carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control.” But if, under that case’s circumstances, the statement implies that the employer will act differently “solely on his own initiative for reasons unrelated to economic necessities,” then the statement will be considered an unlawful threat.

What Should Employers Do Now? The “new” standard requires an employer’s statements to be not only substantiated with facts beyond the employer’s control but also carefully worded. Because it involves a case-by-case analysis, employers will not have certainty about the risks and legality of their communications. As such, it will be critical for employers to vet communications to employees about unionization efforts with experienced counsel.