Walking the tightrope: Managing employer communications during union campaigns

Union organizing often begins quietly, not with a single formal act, but through gradual shifts in day-to-day workplace dynamics. For employers navigating these early stages, what they communicate to employees and how they communicate it becomes critically important. The National Labor Relations Act (NLRA) protects employees’ rights to organize, but it also allows employers to share their perspectives, so long as they do not cross the line into threats or coercion.

A recent decision from the U.S. Court of Appeals for the Fifth Circuit, Starbucks Corp. v. NLRB, offers valuable guidance on where those boundaries lie. The ruling clarifies what employers can and cannot say when union activity is underway.

Key takeaways:

• Context matters when evaluating employer statements during union campaigns. A comment that might seem coercive in isolation may be permissible when considered in its full workplace context.
• Employers may explain operational decisions honestly, even if those decisions touch on union activity, so long as the explanation is not intended as a threat or punishment.
• Acknowledging that union activity is occurring does not, by itself, constitute unlawful surveillance.
• Employers should ground any predictions about unionization in objective facts and avoid language that could be perceived as coercive or punitive.

The case: Starbucks Corp. v. NLRB

In Starbucks Corp. v. NLRB, the National Labor Relations Board (NLRB) initially found that a manager had unlawfully threatened employees. What did the manager do? He told an employee that the company had adjusted store hours to ease some of the pressure caused by union activity.

The Fifth Circuit disagreed. It held that the board failed to evaluate the statement in its proper context. The manager was speaking to a supervisor who already knew that understaffing and high call-off rates, not retaliation, were driving the schedule changes. In that context, the court concluded, a reasonable employee would not view the explanation as a threat to cut hours because of union organizing.

The lesson is that well-articulated explanations of operational decisions do not automatically become unlawful just because management mentions protected union activity.

Hiring pauses and honest communication

The court also rejected the board’s findings on a separate comment about a temporary hiring pause. An assistant manager had explained to a shift supervisor that the company was holding off on bringing in new employees because it felt uncomfortable onboarding new hires without being upfront about the ongoing union effort.

The board viewed this as a coercive threat. The Fifth Circuit disagreed, calling that interpretation speculative. The court drew an important distinction, explaining that the difficulty of hiring during an organizing campaign is not the same as expressing a refusal or intent to stop hiring altogether.

Acknowledgment is not surveillance

The board also found that Starbucks had given employees the impression that their union activities were under surveillance. Why? Because a manager mentioned the union campaign during routine performance meetings.

Once again, the Fifth Circuit rejected this conclusion. The court ruled that acknowledging a general, workplace-wide awareness of union activity is not the same as conducting surveillance. The takeaway is that employers need not pretend they are unaware of an organizing campaign. Simply acknowledging ongoing activities does not, by itself, constitute improper conduct.

What employers can and cannot do

The Fifth Circuit’s decision offers helpful clarity on how employers can communicate during a union campaign:

• Employers can express general opinions about unionization.
• Employers can explain the practical reasons behind operational changes.
• Any predictions about negative impacts of unionization must be grounded in objective facts, not speculation or implied threats.
• Management must avoid language that could be perceived as coercive or tied to punitive outcomes.

The bottom line

Walking the line between permissible employer speech and unlawful interference is never easy. The Fifth Circuit’s decision in Starbucks Corp. v. NLRB offers a helpful reminder that context matters and that honest, fact-based communication is generally on solid footing.

That said, the rules governing employer conduct during union campaigns are complex and vary by jurisdiction. Missteps can result in unfair labor practice charges, costly litigation, and reputational harm. When facing a union organizing campaign, employers should work with experienced labor and employment counsel to ensure their communications stay on the right side of the law.