NLRB Changes Standard for Evaluating Employer Statements on Employee Access to Management in a Unionized Environment
The National Labor Relations Board (NLRB or Board) overturned decades of precedent on November 8, 2024, by announcing a new, stricter standard to determine the lawfulness of employer statements regarding employee access to management in a unionized environment.
In Siren Retail Corp., 373 NLRB No. 135 (2024), a majority of NLRB members held that statements that a union would come between employees and their employer could be viewed as unlawful threats to end the workers’ existing direct relationship with management. Now, employer statements regarding employees’ direct access to management are lawful only if they are based in fact and “carefully phrased” to “convey an employer’s belief as to the demonstrably probable consequences beyond [its] control.”
In reaching this conclusion, the Board relied on Section 9(a) of the National Labor Relations Act, which allows unionized workers “to present grievances to their employer and have such grievances adjusted … as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect … .” Since 1985, employers have relied on the Board’s decision in Tri-Cast to evaluate the lawfulness of these types of statements. 274 NLRB No. 377 (1985). There, the Board held that the employer had not made an unlawful threat when it said, “We have been able to work on an informal...
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