Adams and Reese government relations and labor and employment attorney Bradley Byrne testified in front of the U.S. Senate Committee on Health, Education, Labor & Pensions, on Wednesday, March 29. In his testimony, Byrne expressed concern of at least one instance of NLRB agent misconduct, specifically several violations of the obligation of neutrality, in a Starbucks employee union election, reported by his whistleblower client.
Byrne was a panelist alongside Maggie Carter, Starbucks Barista; Jaysin Saxton, Former Starbucks Worker Leader; Sharon Block, Harvard Law School Professor; and Rachel Greszler, Heritage Foundation Senior Research Fellow.
“I don’t represent Starbucks and have no position on whether Starbucks has violated any law or regulation. Nor do I have a position on the outcome of the elections involving Starbucks stores. I leave that up to the wisdom of the workers in those stores,” Byrne said in his submitted statement.
“I’m here today to express concerns that I have about misconduct by NLRB agents in at least one of the Starbucks elections, and my further concern that there may be a pattern and practice here. Again, I have no objection to a union organizing Starbucks stores, but the process in at least one such election may indicate something threatening the integrity of representation elections in general. .... The obligation of neutrality is central to the NLRB’s obligation to maintain laboratory conditions in representation elections.”
Byrne has practiced law for 43 years, representing clients in numerous representation elections conducted by regional offices of the National Labor Relations Board. He has also served in the U.S. House of Representatives for seven years during which he sat on the Committee for Education and the Workforce and chaired the Subcommittee on Workforce Protections.
The U.S. Senate Committee on Health, Education, Labor & Pensions (HELP) is led by Chair Bernie Sanders (I-VT) and Ranking Member Bill Cassidy (R-LA). Testimony today was also heard from outgoing Starbucks CEO Howard Schultz concerning further investigation into federal labor law issues around Starbucks and the NLRB.
Bradley, said in his experience, NLRB agents overseeing elections have been professional and completely neutral, and have followed the applicable law and process. But he presently represents a NLRB agent “who has courageously come forward as a whistleblower regarding a specific representation election as to a Starbucks store.”
“She has knowledge of specific instances where NLRB personnel violated their neutrality obligations during this particular representation election and has brought that information to the Inspector General for the NLRB. I am not here today to testify for her. I can point you to the transcript and exhibits of a hearing held regarding neutrality violations in a Starbucks election and the findings of the Hearing Officer in that election, wherein he noted instances of violation of the duty of neutrality.”
Byrne continued: “Reading that transcript and those findings causes me to have great concern about the integrity of the representation election process. My concern is as a lawyer and as a former Congressman charged with oversight responsibilities over the NLRB.”
Byrne asked the Committee to conduct an oversight investigation as to whether these violations are limited to this one election or whether they are part of a pattern and practice, potentially guided by one or more persons in the NLRB hierarchy.
Process of Representation Elections Explained
In his submitted statement to the Committee, Byrne explained the process of representation elections.
A union will communicate with workers at a particular employer’s location and try to convince them to sign cards indicating that the worker signing the card wants to be represented by the union as to the terms and conditions of his or her employment.
Once they have a number of signed cards the union will then file a petition with the appropriate NLRB Regional office seeking recognition.
An NLRB agent within that region will contact the employer, who may or may not know that the union has been trying to organize its employees, and if the employer requests an election to determine the true decision of the workers in the unit designated, a process begins which will end in a secret vote by each employee in the unit.
The NLRB agent will attempt to get the union and the employer to agree as to the details of the election - exactly who is in the unit, when and where the election will be held, etc. Once that stipulated agreement is reached, its provisions govern the conduct of the election, unless the parties reach a subsequent agreement to amend it.
“The National Labor Relations Act’s purpose is not to favor employers or unions in the conduct of these elections. Its purpose is to assure that the employees in the unit have a full and free opportunity to decide for themselves whether or not they want to be represented by the union, free of coercion. Therefore, once the petition is filed, the NLRB agent and region involved must assure 'laboratory conditions' during the campaign period.”
As the U.S. Supreme Court recognized in the 1981 decision of First National Maintenance Corp. v. NLRB, the NLRB agents involved in an election must carry out their duties supervising an election in a neutral manner. This neutrality is central to the obligation to maintain laboratory conditions, and to the assurance of integrity in the election process.
“The employer and the union can communicate their reasons against and for the vote but there are significant limitations on those communications which are overseen and enforced by the NLRB agents involved, again in a neutral and impartial manner."
“When the day of election comes the NLRB agent conducts the election and each employee in the unit who chooses to vote does so by a secret ballot to assure there is no coercion,” testified Byrne, who added that during the COVID-19 pandemic, representation elections were conducted by mail, which adds another set of details to work through to assure the integrity and accuracy of the vote.
“At the end of the voting period the NLRB agent counts the ballots in the presence of employer and union representatives and then declares the vote. It takes a majority of votes in the affirmative for the union to be certified as the representative of all the employees in the unit as to the terms and conditions of their employment.”
Representation elections have been conducted when employers have requested them for decades now, since the passage of the Taft Hartley Act, and ensconced in NLRB case law since the 1974 decision in Linden Lumber Division, Summers & Co. v. NLRB. It has been recognized by the U.S. Supreme Court in the 1969 decision of NLRB v Gisselle Packing Co.
Byrne added that he is concerned by the overt efforts by the NLRB’s General Counsel to do away with elections altogether.
“This would mean that employers would be forced to recognize unions merely based on cards even when the employer has reason to believe that the cards don’t reflect the views of the majority of employees in the unit. Unions lose many elections even when they present cards indicating a majority want union representation. Representation elections insure the purposes of the National Labor Relations Act are followed and that employees make their choice freely and without coercion. … The General Counsel’s hostility to representation elections flies in the face of this well settled law.”
About Bradley Byrne: Adams and Reese Of Counsel Bradley Byrne has more than 40 years of experience as an attorney and more than two decades in public service. Throughout his legal career, he has litigated hundreds of civil cases across the Southeast, especially in labor and employment disputes, and he provides government relations services at the state and federal levels, corporate advice and counsel, economic development services, and labor relations counsel for a mix of private businesses, public entities, as well as both state and federal associations.
Byrne has represented numerous clients before the NLRB, Equal Employment Opportunity Commission (EEOC), and Occupational Safety and Health Administration (OSHA). As a member of Congress, he frequently dealt with these agencies and with the Department of Labor, including its Wage and Hour Division.
With his background as a labor and employment attorney and in education policy, Byrne was a natural fit on the Education and Labor Committee, where he chaired the Workforce Protections Subcommittee. Byrne served as an elected member of the Alabama State Board of Education and the Alabama State Senate and was appointed as the Chancellor of Alabama’s two-year college system. He chaired Alabama’s Workforce Planning Council. In 2022, he was named President and CEO of the Mobile Chamber of Commerce.
Byrne spent four terms in the U.S. House of Representatives serving on the Armed Services Committee. He was also appointed by two Speakers to the prestigious Rules Committee.