Senior Vice President, Employment Policy Division, U.S. Chamber of Commerce
February 01, 2024
When one is called into federal court, it makes sense to utilize all the options available to defend oneself. However, the National Labor Relations Board (NLRB) and the Starbucks Workers United union [essentially a front for the Service Employees International Union (SEIU)] are angry that Starbucks has done just that. Now, the union is seeking additional government intervention, this time from the Department of Labor (DOL).
At the heart of this story is the concept of a 10(j) injunction. When the NLRB seeks to take immediate action against an employer, as opposed to waiting for its internal adjudicatory processes to play out, it can ask a federal court to approve a 10(j) injunction. If the court approves the injunction, the company must cease whatever behavior sparked the request.
Of course, going into federal court means that the company in question gets the opportunity to oppose the injunction, and to use legal tools like subpoenas as part of its defense. Not surprisingly, Starbucks did so in a case involving stores in Buffalo, New York. And this appears to have made the NLRB and the SEIU mad.
Why it matters: As noted before, the NLRB decided to press unfair labor practice charges against Starbucks for exercising its rights in an Article III court. It also asked that the subpoenas be squashed. However, the legality of subpoenas filed in a court is not up to the NLRB. Indeed, 22 subpoenas were approved by a three-judge panel of the Second Circuit Court of Appeals. So, it seems that the agency is retaliating against Starbucks in the only way available to it.
For the union, however, that is not enough. The SEIU recently sent a letter to the Department of Labor’s Office of Labor-Management Standards (OLMS) asking that it pursue an investigation against both Starbucks and the law firm retained by the company. The union claims Starbucks and the law firm Littler Mendelson have engaged in so-called “persuader activity.” Persuader activity refers to situations in which a company hires a third party to talk to its workers about unions in an attempt to convince them to vote for or against a union or to gather information about workers’ union activities. If this has occurred, then the third party must file financial disclosure forms with OLMS, as must the company that hired them.
There may be situations in which a law firm engages in persuader activities that might require filing disclosure forms. But the idea that this includes merely filing subpoenas on behalf of a client is, in a word, ridiculous. In its letter to OLMS asking for an investigation, the union actually admits as much, stating that “Section 203 [of the Labor-Management Reporting and Disclosure Act] does not apply to attempts to obtain information for use solely in a legal proceeding[.]” Indeed, it does not. However, the union attempts to wordsmith its way around the statute by claiming that “these subpoenas demanded documents far in excess of what could be considered appropriate in these proceedings – and indeed have been found by adjudicators to be inappropriate.” The adjudicators in question? Not the federal court in which the subpoenas were filed, but rather Administrative Law Judges of the NLRB. Surprise.
Although the union’s assertion is absurd, OLMS will probably cooperate and request a persuader report from Starbucks and Littler Mendelson. The agency has already been playing fast and loose with the law, pressing companies to file persuader reports even when clear statutory text provides an exemption. When companies decline to file, OLMS has been hitting them with subpoenas, hoping that such harassment will make them cave in.
Bottom line: None of this is likely to further the SEIU’s campaign against Starbucks, which seems to have lost its momentum a few years ago. What this saga has shown is that the NLRB will retaliate against companies that exercise their rights and that unions will grasp at any straws they can to harass employers and even their retained counsel. Hopefully, OLMS will decline to take part in this fiasco, but their record doesn’t offer much encouragement.
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.