Ranking Member Cassidy Calls Out Weaponization of National Labor Relations Board

WASHINGTON – Today, U.S. Senator Bill Cassidy, M.D. (R-LA), ranking member of the Senate Health, Education, Labor, and Pensions (HELP) Committee, called out the National Labor Relations Board (NLRB) for weaponizing its enforcement power to target high-profile employers in order to revive certain policies and precedents favored by unions. This comes after reports of NLRB officials coordinating with Starbucks Workers United (SWU) to tip representation elections in favor of SWU, which has allegedly used their position to threaten, intimidate, and coerce employees who resisted unionization.

The NLRB is required by the National Labor Relations Act (NLRA) to act as a neutral party in labor disputes between employees and employers, not in favor of one party over the other. This was confirmed by the Supreme Court in First Nat'l Maintenance Corp. v. NLRB.

In addition to coordination with SWU, the NLRB has taken other controversial actions to target prominent employers, including issuing a decision against Tesla that forces them to allow employees to display pro-union apparel even if it violates their dress code. The NLRB has also used its litigation to revive certain pro-union policies like “card check,” which would eliminate secret ballot union elections, removing a key protection for workers from intimidation.

“While no company is exempt from the National Labor Relations Act’s (NLRA) obligations, no company should be unfairly targeted and intimidated by a regulatory board,” wrote Dr. Cassidy. “The Board’s recent actions in representation cases, to say nothing of the sheer volume of litigation currently directed at fewer than a handful of employers, indicates a disturbing pattern of politicized targeting that poses a direct affront to principles of procedural due process and impartial enforcement.”

“The actions by the NLRB appear to contradict the Supreme Court’s admonition that the NLRA ‘is not intended to serve [either labor or business’] individual interest…,” continued Dr. Cassidy. “Given the recent onslaught of unprecedented actions taken by the Board, I request that you answer the following questions, on a question-by-question basis, by March 21, 2023.”

Read the full letter here or below.      

Dear Chairman McFerran and General Counsel Abruzzo: 

I write regarding the National Labor Relations Board’s (NLRB or “the Board”) possible misconduct and lack of neutrality in litigation against prominent employers. While no company is exempt from the National Labor Relations Act’s (NLRA) obligations, no company should be unfairly targeted and intimidated by a regulatory board. The Board’s recent actions in representation cases, to say nothing of the sheer volume of litigation currently directed at fewer than a handful of employers, indicates a disturbing pattern of politicized targeting that poses a direct affront to principles of procedural due process and impartial enforcement. 

I have received alarming reports of Board personnel and employees coordinating with agents of Starbucks Workers United (SWU) to tip representation elections in favor of SWU and Service Employee International Union (SEIU) activists. These include Board employees making secret arrangements with union representatives to vote in-person with no party observers present in what all parties agreed would be a mail-ballot election; providing union agents with confidential, non-public information regarding vote counts in order to enable SWU to target and intimidate employees; providing unions duplicate and triplicate ballots; and individualizing voting arrangements for voters hand-picked by SWU.¹ If proven true, these allegations represent blatant violations of the integrity and neutrality requirements for representation elections across multiple Regions. It is important to note that, on August 24, 2022, these allegations prompted a bicameral letter to the NLRB Office of Inspector General (OIG), led by then-Ranking Member Virginia Foxx and then-Ranking Member Richard Burr, requesting that the OIG open an investigation into the matter.²   

Furthermore, through a series of decisions and initiatives from the General Counsel’s office, the Board has weaponized its enforcement powers to target prominent employers. For example, the Board recently issued a decision against Tesla, holding that dress codes and uniform policies interfering “in any way” with an employee’s right to display union insignia are unlawful.³ Such a broad pronouncement directly contradicts Board and Second Circuit precedent holding that employers may restrict “union insignia or apparel [on work uniforms] when their display may . . . unreasonably interfere with a public image that the employer has established.”⁴ The NLRB is also pursuing similar litigation against Starbucks’ uniform policy.⁵ 

The Board also has active litigation against Starbucks in over 25 Regional Directorates.⁶ In one of these cases, Region 14’s Regional Director has filed a complaint in consolidated litigation against Starbucks urging the revival of the Joy Silk standard for issuing bargaining orders.⁷ This standard, in which an employer is required to recognize a union as the sole bargaining unit of a workforce once a union furnishes cards signed by a majority of their employees, has long since been discarded by the Board.⁸ A wide array of stakeholders have warned that the revival of the Joy Silk standard, and thus the revival of card-check and elimination of the secret ballot, will destroy the integrity of representation elections and lead to an even greater proliferation of union intimidation in the workplace.⁹  

NLRB Regional Directors have also been requesting nationwide cease and desist orders without substantive evidence of corporate-wide anti-union policies.¹⁰ In addition to targeting Starbucks, the Board recently filed a frivolous complaint against Amazon CEO Andy Jassy for expressing an opinion regarding employees’ right to organize in a televised interview.¹¹ The Unfair Labor Practice (ULP) complaint directly contravenes relevant provisions of the Taft-Hartley Act that permit employers to speak freely on the merits of unionization so long as such sentiments are free of coercion and intimidation.¹² That the ULP was issued three months after the NLRB’s Office of General Counsel issued a memorandum prohibiting employers from exercising their First Amendment rights, contrary to precedent, seems to be coincidence.¹³ Similar to Starbucks, Amazon has also been on the receiving end of a barrage of litigation unsurpassed in the Board’s history, with active cases across 25 Regional Directorates.¹⁴  

The actions by the NLRB appear to contradict the Supreme Court’s admonition that the NLRA “is not intended to serve [either labor or business’] individual interest, but to foster in a neutral manner a system in which the conflict between [employer and employee] interests may be resolved.”¹⁵ Given the recent onslaught of unprecedented actions taken by the Board, I request that you answer the following questions, on a question-by-question basis, by March 21, 2023: 

1. What processes and procedures does the Board and/or its Regional Directorates have in place to investigate allegations of Board employee misconduct or interference in representation elections?  

2. Since 2020, has the Board become aware of any actions by Board employees to interfere, or attempt to interfere, in representation elections? If so, please produce the following information: 

1. A brief narrative of the alleged misconduct.  

2. The date the Board became aware of the alleged misconduct. 

3. The status of the Board’s investigation, including whether the Board has held a hearing to better understand the facts at issue.  

4. The outcome of the Board’s investigation, including whether any disciplinary actions has been taken against Board employees. 

3. With regards to the long-abandoned Joy Silk doctrine, has any attention been paid to the concerns of stakeholders regarding the revival of card-check, including the prospect of increased union coercion and intimidation of employees? If so, how have those concerns been addressed? 

4. Please produce a list of all pending nationwide cease-and-desist petitions filed in all Regional Directorates. 

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