The National Labor Relations Board (NLRB) will no longer deem as lawful most employer statements about the impact of unionization on the relationship between employees and their employer. The change, which is the result of a ruling on Nov. 8, overrules nearly 40 years of precedent.

“I see this as yet another case that will be the subject of judicial review because of the board’s sudden departure from a rule that has been in place for decades,” said Jonathan Turner, an attorney with Mitchell Silberberg & Knupp in Los Angeles.

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Change in Legal Interpretation

Employers are no longer categorically allowed to tell workers that unionization will negatively impact their relationship with management, the NLRB ruled in a decision involving Starbucks Corp. (Siren Retail Corp. d/b/a Starbucks). The move overruled the NLRB’s 1985 decision in Tri-Cast Inc., where the board said that “there is no threat, either explicit or implicit,” in explaining to workers that organizing changes their dynamic with the company.

The board said it was returning to the standard set in the U.S. Supreme Court’s 1969 NLRB v. Gissel Packing Co. Inc. decision. In that ruling, statements on the impact of unionization must be “carefully phrased on the basis of objective fact” about “demonstrably probable” consequences that are beyond the employer’s control.

Nonetheless, in Siren Retail Corp. d/b/a Starbucks, the NLRB cleared Starbucks of...

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