Two very recent post-election National Labor Relations Board (NLRB) decisions portend a flurry of NLRB anti-employer activity prior to the beginning of the new administration. Both decisions demonstrate that the current iteration of the NLRB knows no boundaries in its bent to tilt the playing field 100% in favor of unions and union organizing campaigns.

Last Friday, the NLRB threw out 40 years of NLRB precedent governing employer comments regarding unionization. See Siren Retail Corp d/b/a Starbucks. The case involved employer threats made during a union organizing campaign. Under long-standing precedent, Tri-Cast Inc., the NLRB previously held that an employer does not violate the NLRA when explaining to employees how unions can change their relationship or dynamic with the company. Overruling Tri-Cast, Inc., the Board now holds that even if an employer’s explanation “constitutes a permissible construction of the [National Labor Relations] Act, 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.” For decades, managers and persuaders were allowed to explain to employees that they would no longer be able to negotiate directly with them were a union voted in, and other statements of indisputable fact regarding unionization. This Starbucks decision means employer statements of fact will now be judged on a case-by-case basis, clearly chilling an employer’s willingness and ability to share with its employees the harsh realities of unionization.

And, not content to throw out 40 years of Board precedent, today in Amazon.com Services the Board reversed almost 80 years of precedent by overturning its Babcock & Wilcox Co. decision, which held that an employer does not violate the NLRA by holding “captive audience” meetings during working hours to educate employees on the employer’s position on unionization. Captive audience meetings are an employer’s most effective tool to (a) state its position on unionization, (b) educate employees on unionization and the process, and (c) combat the mountain of blatant lies union organizers tell employees to get them to vote for a union. Not anymore, however. Under Amazon.com, an employer commits an unfair labor practice when it compels employees to attend a captive audience meeting. This new rule, of course, appears nowhere in the NLRA. In fact, Section 8(c) of the NLRA says the very opposite: “The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice … if such expression contains no threat of reprisal or force or promise of benefit.” The Amazon.com decision literally contradicts the very language of this provision that it purports to enforce. The result will dramatically tilt the playing field against employers, who already lack the tools to discourage unionization that unions possess to force unions down employees’ throats.

It is, of course, nothing new to see lame duck agencies hit the gas pedal and push the limits of their authority in the face of an upcoming change in administrations. But these two decisions reflect the NLRB’s unrestrained commitment to render it impossible for employers to exercise their rights to oppose union campaigns or communicate about unionization, and there will be much more of this to come until the NLRB is thankfully reconstituted in 2025. Meanwhile, in the unintended consequences department, decisions like these will provide powerful incentives for a Republican-controlled Senate and House to gut the NLRA in this next administration, all because of the NLRB’s hubris.