Senior Vice President, Employment Policy Division, U.S. Chamber of Commerce
March 06, 2023
Senator Bernie Sanders (I-VT) has scheduled a number of upcoming hearings on the subject of labor law. These include a hearing on alleged company interference with union organizing, a special hearing on whether to issue a subpoena for the CEO of Starbucks to appear before the Health, Education, Labor, and Pensions (HELP) committee (of which Sen. Sanders is the Chairman), and another hearing to decide whether the Chairman will have the authority to launch unlimited “investigations” into alleged “violations of federal labor law by major corporations.”
These hearings, no doubt, will prove entertaining, at least to those who follow labor law. But they are likely to simply reprise the same pro-union talking points articulated by Sen. Sanders in previous hearings. What would really make them interesting is if some unexpected questions were asked by the Chairman. Given that this is highly unlikely, this blog poses some important questions here:
1. Why has the Teamsters Union received nearly 800 Unfair Labor Practice charges (ULPs) over the past two years?
This is far in excess of the companies currently in the National Labor Relations Board’s (NLRB) crosshairs. Granted, the vast majority of ULPs are dismissed as being without merit, or withdrawn, so the volume of charges against the Teamsters should be taken with a grain of salt. But the mere fact that companies have been hit with ULPs forms much of the basis for Sen. Sanders’ upcoming hearings. Remember that ULPs can be filed by anyone for any reason, so it is hardly surprising that businesses being targeted by unions see more than their share of frivolous charges. If one wants to claim that the raw number of ULPs filed against a company is an indicator of guilt, then charges filed against unions should be part of any hearing.
2. Why has the NLRB’s Inspector General launched an investigation into agency misconduct in union elections?
Unions have been targeting Starbucks for more than a year now. And according to an agency whistleblower, they seem to be getting a little help from the NLRB. Numerous allegations from the whistleblower were listed in a letter from Starbucks to the NLRB in August of 2022. These include things like assisting union supporters with voting and improperly sharing information about pending elections with the union. These allegations were serious enough for the NLRB’s Inspector General to open an investigation. Moreover, on February 24, an NLRB hearing officer found that officials in Region 14 had engaged in misconduct.
3. Why did a federal judge dismiss a nationwide injunction against Starbucks?
On February 17, a federal judge issued a nationwide injunction against Starbucks based on allegations the company had fired union supporters. The NLRB quickly crowed that this constituted de-facto proof that the company was violating the law. The cheering was, perhaps, a bit premature. Shortly thereafter, the same judge cancelled the injunction and rejected an NLRB request for a national cease-and-desist order, saying that the NLRB “has not demonstrated that Starbucks has implemented a corporate-wide anti-union policy.” Instead, the judge focused his attention on a single store where one employee had been terminated for a direct violation of policy stating that no less than two workers must staff any store location, an allegation that the employee in question reportedly admitted. The worker safety justification for this policy seems obvious, but somehow the NLRB construed enforcing this policy to be anti-union.
4. Is unionizing a Constitutional right?
In a recent statement, Sen. Sanders asserts that unions have a “constitutional right” to organize workers. This might be news to the founders. While the word “union” does make several appearances in the Constitution, this is a reference to the union of states, not the SEIU or AFL-CIO. Nor does anything relating to union organizing appear in the Bill of Rights or the 17 other ratified Constitutional Amendments. And even if there is some sort of implied right to organize, based perhaps on the right to associate freely, it would conflict directly with an employer’s right not to associate with such a group, and the well-established right of employers to express themselves freely as protected by the First Amendment.
5. Why is the NLRB attacking free speech rights?
As the U.S. Chamber has noted on numerous occasions, the NLRB seems to have something against free speech, at least when it comes from employers. Given Sen. Sanders’ emphasis on Constitutional rights, perhaps infringement of a clear right that is specified in our nation’s founding documents should get a mention at any hearing and that attempts to suppress that right should be denounced.
6. How much money does the NLRB expect to spend defending the General Counsel’s novel and outlandish legal theories?
The General Counsel (GC) has put forward some long-discredited ideas for how the NLRB should enforce the law and asked the Board to implement them. If the Board takes the GC up on any of these topics, the agency will find itself mired in litigation, likely using up all of the $25 million Congress gave it last year for other purposes. The General Counsel’s ideas include: a) doing away with secret ballots in union elections and instead forcing employers to accept signature cards, a practice that courts and the NLRB itself have recognized as inferior; b) taking away employer speech rights, rights recognized by Congress and the Courts; and c) hitting employers with entirely speculative damages if they don’t immediately commence bargaining with a new union even when there are disputes about the conduct of the election.
These are all questions that would make upcoming hearings more interesting than the simple re-hashing of anti-employer bromides that we’re likely to get. Nonetheless, as Sen. Sanders is unlikely to ask them, that task may fall to other members of the committee, who will have an opportunity to exercise their clear right to free speech.
About the authors
Spencer oversees the Chamber’s work on immigration, retirement security, traditional labor relations, human trafficking, wage hour and worker safety issues, EEOC matters, and state labor and employment law.