On Nov. 8, the National Labor Relations Board (NLRB) issued yet another decision upending nearly 40 years of prior precedent. In Siren Retail Corp. d/b/a Starbucks and Workers United Affiliated With Service Employees International Union, the NLRB reversed its prior holding in Tri-Cast, Inc. from 1985.

In the Tri-Cast ruling, the NLRB held that employer’s statements explaining the employee/employer relationship will change if a union is elected were lawful. Specifically, the board said, “there is no threat, either explicit or implicit, in a statement which explains to employees that, when they select a union to represent them, the relationship that existed between the employees and the employer will not be as before.”

Up until last Friday, this had been the law for 39 years.

The NLRB reversed course in its most recent decision, with the majority now claiming that Tri-Cast was “poorly reasoned when it was decided, and its later application has categorically immunized employer campaign statements that, based on their content and context, could reasonably be understood to threaten employees with the loss of an established workplace benefit.”

Under the new standard, employer statements or predictions that having a union would make it more difficult for employees to solve issues directly with their managers are only legal if they are “carefully phrased on the basis of objective fact to convey an employer’s belief as to the demonstrably probable consequences beyond his control.”...

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