NLRB seeking to remake U.S. labor law, with Starbucks as a vehicle

Months before the union movement started spreading throughout Starbucks, an early organizing campaign led to claims of employer surveillance, intimidation, and retaliation against a number of employees advocating for the union. That unfair labor practice case has finally made its way to the National Labor Relations Board (NLRB), and a decision is forthcoming.

New remedies sought

Although there are complicating issues of state versus federal law and the role of after-acquired evidence, this case is being watched because it will give the NLRB its first opportunity to make new law. At issue is the breadth of remedies the Board can impose on an employer accused of unfair labor practices that could undermine the organizing or voting process itself. In the past, those remedies were usually limited to reinstatement of terminated workers plus back pay—a “make-whole” remedy—a punishment that union supporters claim does little to deter violations. The new NLRB wants to add consequential damages—monetary awards—and other remedies, effectively turning unfair labor practices into torts (wrongful act claims).

This effort is just part of NLRB General Counsel Jennifer Abruzzo’s plans to remake U.S. labor law into a model code of union support, something unseen since the days before the Taft-Hartley amendments were added to the National Labor Relations Act (NLRA) in 1947. Among the other “revisions,” Abruzzo is seeking an end to “captive audience” speeches, bargaining orders, and an expansion of union rights of access to employer properties.