Dos, Don’ts and Takeaways for Employers: Navigating Increased NLRB Scrutiny Over Union Organizing Activity  

Facing a union organization drive in its stores around the Buffalo, NY, Starbucks was issued a complaint by the National Labor Relations Board (the NLRB “Board”) on May 6, 2022. The complaint asserts that Starbucks interfered with, restrained and coerced employees seeking to unionize by allegedly closing stores, enforcing policies against employees supporting unionization and by reducing compensation for and terminating union-supporting employees. Starbucks intends to fight against the complaint, and this is just the beginning stages of the litigation process concerning this complaint. 

As the legal process plays out, this case should serve as a useful reminder to employers about the Board’s processes in pursuing charges against an employer, the Board’s increased enforcement actions against employers (especially in the context of union organizing campaigns) and what employers can and cannot do when faced with a union organizing drive.

The NLRB Complaint Process

The first step in the Board’s complaint process is the Board’s applicable regional office receiving charges alleging violation of the National Labor Relations Act (the “Act”). Charges can be filed by unions, employers, individual employees, and any other person and can allege wrongdoing by any other party to the employment relationship. Once charges have been received, the regional office is tasked with investigating the allegations through the receipt of evidence including affidavits from parties and witnesses. If that investigation results in the regional office finding that the charge allegations have merit, then a complaint is issued against the offending party.  Regions almost always give the charged party the opportunity to settle a case after a merit determination is made, and before a complaint issues.

Takeaways from the Complaint Issued Against Starbucks

The complaint against Starbucks is further evidence of the Board’s increased activity and enforcement. Regional offices are finding more merit to charges and there are more matters going to Complaint (and ultimately trial) all while the Board’s General Counsel, Jennifer Abruzzo, has released multiple memoranda calling for increased enforcement and stricter interpretations of the Act. In addition, the Board is more frequently pursuing 10(j) relief, which is where the Board pursues an injunction against an offending party to obtain relief before the charges in the complaint are resolved pursuant to a full hearing. The Board’s General Counsel has issued a specific memorandum announcing increased pursuit of 10(j) injunctive relief in charges related to union organizing campaigns. The Board’s increased enforcement activity and heightened scrutiny of employers means that employers must understand their rights and obligations under the Act, especially during union organizing campaigns.

Dos and Don’ts for Employers in Union Organizing Campaigns

When employees seek to unionize, employers are not required to sit idly by and wait for the result of a representative election. Rather, employers are permitted to engage in activities that would not interfere with the employees’ right to make a free choice in an election.The dos and don’ts for employers can be summarized with two acronyms: “FLOE” and “TIPS.” 

“FLOE” provides what employers are permitted to do and what employers can communicate to employees during a unionization drive:

  • Facts – employers can share facts with their employees regarding their rights in opposition to unions, the costs of unionization and the changes that could result from unionization, among other facts;
  • Listen – employers are able to listen to their employees regarding their support or opposition to unionization so long as the employer is not soliciting grievances against the union or interrogating employees;
  • Opinions – employers can express to employees why the employer feels a union is not in the employees’ best interests; and
  • Examples – employers can share and provide real examples (including personal experiences) of other situations to highlight the downside of unionization.

“TIPS” provides what actions and communications are not permitted by employers during an organizing campaign:

  • Threats – employers are prohibited from threatening employees with reprisals, including loss of employment or benefits, for supporting unionization;
  • Interrogate – employers cannot question employees about their support for the union or the employees’ activities in support of the union;
  • Promises – it is illegal for employers to promise benefits or provide benefit increases conditioned on or to encourage the employees’ opposing unionization; and
  • Surveillance – employers are not permitted to conduct surveillance of employees (or create the impression of surveillance) and union members engaged in union activity including meetings.

In addition, employers are prohibited from imparting discipline against employees for supporting the union and this includes transfers, layoffs, termination, adverse work assignments or otherwise punishing employees for supporting unionization.

Stay tuned to Stevens & Lee’s Labor and Employment Law Center for further updates as developments impacting employee rights and employer obligations continue to develop under the NLRA and other federal, state and local traditional labor laws. If you have any questions about how this, or any other, labor and employment law development may affect your business, please contact Daniel J. Sobol at daniel.sobol@stevenslee.com, Michael G. Greenfield at michael.greenfield@stevenslee.com, or the Stevens & Lee attorney with whom you regularly work.

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