Senior Vice President, Employment Policy Division, U.S. Chamber of Commerce
May 09, 2023
The Service Employees International Union’s (SEIU) campaign to unionize Starbucks has generated a lot of attention. And unfortunately, it has also generated credible allegations from a whistleblower that the National Labor Relations Board (NLRB or Board) has been playing favorites, helping the SEIU win elections. The allegations have triggered an investigation by the NLRB’s Inspector General into how the agency is conducting mail ballot elections. The House Education and Workforce Committee has also begun examining the allegations.
Now the NLRB has launched a new tactic to “encourage” union wins—a preemptive bargaining order requiring an employer to recognize and bargain with a union. So-called Gissel bargaining orders are meant to be used only in particularly egregious cases where an employer is alleged to have engaged in misconduct so pervasive that no fair election could be held. In the case of a Starbucks store in Overland Park, Kansas, however, NLRB administrative law judge (ALJ) Arthur Amchan recently decided to impose a Gissel bargaining order to cover a re-run election that hasn’t even been scheduled yet. That is truly egregious.
A little bit of background: In Overland Park, the SEIU won an election in February amongst a group of 20 Starbucks employees. However, an NLRB hearing officer determined that the election should be overturned due to Board misconduct, and Starbucks itself challenged the election result. It’s worth noting that the whistleblower’s allegations concerned this same store.
The hearing officer’s determination that the election should be re-run (which can be appealed to the Board), however, is complicated by the Gissel bargaining order. In fact, there is speculation that the order was issued just in case there was a re-run election scheduled because the NLRB knew that the election was being challenged.
This creates two ridiculous situations. If there winds up being no re-run, ALJ Amchan has issued a Gissel bargaining order for an election the union has already won — an odd occurrence to say the least. If, on the other hand, a re-run is scheduled (presumably because there is merit in the charges of improper conduct by the NLRB), then ALJ Amchan may have blocked a free and fair election and penalized the employer for the agency’s conduct. Neither one of these looks good for the agency and only reinforces the perception that the NLRB has abandoned its proper role as a neutral arbiter and instead transparently favors unions.
Under its current majority, the unexpected is becoming the new norm from the NLRB and its General Counsel. These latest shenanigans have taken things to a new level. Congress recently gave the NLRB a spending increase of $25 million, but given the agency’s behavior, it should not do so again.
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.