Senior Vice President, Employment Policy Division, U.S. Chamber of Commerce
May 17, 2023
There’s an old saying regarding our nation’s criminal justice system: you are innocent until proven guilty. The National Labor Relations Board (NLRB) has a slightly different take on that when it comes to Starbucks. Apparently, you can be found guilty for attempting to prove you are innocent.
In one of the more unusual twists in the saga of the union campaign against Starbucks, an NLRB Administrative Law Judge (ALJ) has ruled that Starbucks violated federal labor law by issuing more than 20 subpoenas approved and upheld by an Article 3 court in litigation against the company. The irony is that the litigation was brought by the NLRB itself, which skipped its normal administrative procedures and went straight to federal court to seek what is known as a 10(j) injunction against the company.
As part of its defense against the injunction, Starbucks is seeking underlying information about the injunction request. Which is what defendants in court cases typically do. The 22 subpoenas issued by Starbucks were approved by a federal district judge last September.
Apparently, the novel strategy of defending itself upset the NLRB and the Service Employees International Union, which is the real force behind the campaign (its public face is the so-called Starbucks Workers United union). The union and the NLRB’s General Counsel requested that the Second Circuit Court of Appeals quash the subpoenas, which a three-judge panel declined to do earlier this year. This led to the filing of unfair labor practice charges (ULPs) against Starbucks for issuing the subpoenas, which led to the ALJ’s decision on May 12.
Even as he ruled against Starbucks, the ALJ actually noted what is really going on here. In his decision, he wrote that the NLRB’s General Counsel and the union are using the ULPs “not just as a shield to protect employee confidentiality interests, but as a sword to weaken the [company’s] 10(j) defense and obtain an injunction.”
This whole situation can only be described as Orwellian. The NLRB itself sought to depart from its usual administrative procedures and go to federal court to press charges against Starbucks. Starbucks availed itself of procedures available in federal court to mount a defense. And now the NLRB’s General Counsel argues that by defending itself, the company has violated federal labor law. This sort of thing might be considered a normal day in your average autocracy, but it’s a bit surprising to see it play out in our nation’s capital. When the NLRB comes to Congress once again pleading for more money, the answer should be a polite but firm, no.
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.