NLRB (for now) Bans Employer Threats to Eliminate Meetings Addressing Employee Concerns

December 4, 2024 by Andrew Baker

The Biden Board has issued a decision barring employers from threatening employees during an organizing campaign that if they unionize the employer will no longer address their individual grievances. The decision in Starbucks (Nov. 8, 2024) overrules the 1985 Tri-Cast decision which held that such statements were almost always permissible.

In Tri-Cast, the Board found that there was no unlawful threat when an employer promised that if the employees unionized the employer would no longer meet with employees individually to address their concerns. The employer made this statement even though the NLRA permits unionized employers to address individual employee grievances so long as the union is given an opportunity to be present and the employer does not violate the union contract. Since Tri-Cast, statements threatening that workers will no longer be able to bring issues to supervisors or managers if they unionize have become a staple of anti-union campaigns.

By overturning Tri-Cast, the Board in Starbucks has restored the Supreme Court’s 1969 Gissel standard that employers’ predictive statements about what will happen in the event of unionization must be grounded in objective fact as to demonstrably probable consequences beyond the employer’s control.

Since the NLRA permits employers to address individual complaints regardless of unionization, under the Gissel test, an employer’s prediction that it will no longer do so if workers unionize constitutes an illegal threat to eliminate a benefit within the employer’s control.

The Biden Board limited application of this ruling to future violations, so statements prior to November 8, 2024, cannot be challenged under Starbucks. The fate of this decision and the Biden Board’s pro-worker decisions generally are in doubt with the election of President Trump, but as of today employers’ anti-union campaigns violate the Act when they make predictions about the employer’s own future refusal to entertain individual grievances.

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