Monday morning musings for workplace watchers.
NLRB’s New Predicament|State Bills Target Unions
Robert Iafolla: A
Seemingly contradictory orders involving a politicized labor-management dispute show how the sprawling Starbucks unionizing campaign—and the related legal issues it raises—is pushing the NLRB into strange, potentially unprecedented territory.
A hearing officer in February recommended nixing Starbucks Workers United’s election victory at a café in Overland Park, Kan., and holding another vote. The agency’s conduct raises doubts about the fairness of the balloting, according to her report.
But it’s not so simple. Before the hearing officer weighed in, an administrative law judge ruled that Starbucks must recognize and bargain with the union for workers who are employed at the Overland Park store.
ALJ Arthur Amchan issued that Gissel bargaining order even though the union won the election—which is itself a rare, possibly unique occurrence, several NLRB watchers said. Such orders are imposed when an employer’s labor law violations destroy the possibility for a fair election.
Starbucks filed its challenge to the Overland Park election results before Amchan’s ruling, which suggests that the judge may have gone the Gissel route in anticipation of a rerun election, said Rebecca Leaf, a former NLRB attorney who practices at management-side firm Miles & Stockbridge.
Starbucks’ appeal of the ALJ’s decision is pending before the board. A regional director needs to choose whether to accept the hearing officer’s recommendation, a decision that could be challenged at the board.
The House committee probe into allegations that the NLRB has improperly favored the union in Starbucks cases adds an overtly political element. The panel subpoenaed an agency official for information, specifically referencing the Overland Park election.
That political heat puts the NLRB in an even tougher position. The board might want to avoid the appearance of backing down from what it views as an inherently anti-union employer, said Michael Duff, a labor law professor at St. Louis University and former NLRB attorney. But at the same time, it’s probably loathe to give more ammunition to the agency’s foes in Congress, he said.
“It’s very easy to paint something as malignant when it really boils down to understaffing and a lack of coordination,” Duff said of the agency conduct cited in the hearing officer’s report.
The regional director reviewing the hearing officer’s report would show a “wise measure of discretion” to wait for the NLRB to act on the ALJ’s ruling before deciding whether to order a rerun election, said William Gould, a former board chair who teaches labor law at Stanford University.
And if the NLRB upholds the Gissel order, then a rerun election would likely be moot, he said.
The Overland Park store is “in many ways a perfect distillation of Starbucks’ anti-union campaign nationwide,” said the union’s lawyer, Gabe Frumkin of Barnard Iglitzin & Lavitt LLP. The company committed a string of unfair labor practices leading up to the union’s unambiguous election victory, which it followed with aggressive litigation that’s delayed bargaining, he said.
Starbucks said the administrative law judge should have considered the agency’s election conduct cited by the hearing officer. Issuing a bargaining order before resolving the disputed election is “putting the cart before the horse,” company spokesman Andrew Tull said.
READ MORE:
- Lawmaker Subpoenas NLRB Official on Starbucks Union Election (1)
- Starbucks Refused to Negotiate Fairly at Cafes, NLRB Alleges (1)
- Starbucks Investors Vote in Favor of Worker-Rights Assessment
- Big Starbucks Ruling Gives NLRB Chance to Flex Its Remedy Muscle
Chris Marr: Tennessee and Florida are close to restricting the way private- and public-sector workers join unions and pay dues, the latest of states’ perennial efforts to tilt the playing field either for or against labor organizing efforts.
The Tennessee bill (HB 1342) would potentially penalize companies if they’re too friendly with union organizers, making economic development incentives contingent on following the state’s preferred policies. The bill exempts a $5.6 billion development in western Tennessee where Ford Motor Co. and the South Korean company SK Innovation Co. plan to build electric vehicles and batteries because the state already agreed to those incentives and the companies broke ground in September 2022.
“It’s not unusual to have legislation that forces a company to embrace a union in one way or another” in states with Democratic-majority legislatures, said Michael Lotito, a labor lawyer at Littler Mendelson PC and co-chair of the firm’s Workplace Policy Institute. “But this is revolutionary in that it flips that coin on the other side.”
The measure appears to be the first of its kind in the US, but other Republican-majority statehouses are likely to imitate it, he said.
Specifically, companies entering or expanding operations in Tennessee would forfeit state economic development incentives if they voluntarily recognize a bargaining unit based only on workers’ signatures of authorization cards—commonly known as card checks—rather than requiring a secret ballot election overseen by the National Labor Relations Board. The measure, which the legislature passed April 21 and sent to Gov. Bill Lee (R) for his signature, also would deny incentives to companies that voluntarily provide worker contact information to labor unions without the employees’ consent.
Various pro-union policies in blue states require companies to accept card checks or to enter project labor agreements, Lotito said, often as a condition of receiving state funding, contracts, or licenses such as for cannabis growers or distributors.
Most notable among unions’ legislative wins in 2023, Michigan’s statehouse with a newly Democratic majority repealed the state’s decade-old “right to work” law, which barred collective bargaining agreements from requiring union membership or dues payment as a condition of employment.
A handful more Republican-majority statehouses have moved to limit unions’ power this year, but with a focus on state and local government workplaces.
Versions of legislation advanced by the anti-union advocacy group Freedom Foundation have passed in Arkansas, Florida, Kentucky, and Tennessee. The bills bar government employers from withholding union dues from employee paychecks—the prohibition being limited to public school teachers in some states but more broadly covering state workers in others.
Florida’s bill (SB 256), which is headed to Gov. Ron DeSantis (R) for his signature, goes further by requiring public-sector bargaining units to show at least 60% of unit employees are dues-paying members each year, or else face a decertification vote.
The American Federation of Teachers has criticized the legislation as part of DeSantis’ broader attacks on any educators whose instruction or affiliations don’t align with his viewpoints.
“This noxious attack on the freedom of Florida’s teachers, staff and professors to join together and work together will irrevocably harm the children and communities they serve,” AFT President Randi Weingarten said in a press release.
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