Monday, August 1, 2022

NLRB dismisses charges against lawyers for alleged “union busting” against the employees of its client … but let’s not celebrate yet

One law firm has been at the center of most of the recent high-profile anti-union organizing efforts in large multi-state employers such as Starbucks, Apple, and Trader Joe's — Littler Mendelson. The Service Employees International Union filed an unfair labor practice charge against that law firm and its responsible attorneys alleging that they violated the National Labor Relations Act by illegally polling Starbucks' employees about their support for the union. 

Thankfully, the NLRB has now dismissed that charge.

The NLRB correctly concluded that the law firm and its lawyers cannot be held liable for any unfair labor practices allegedly committed during the organizing campaign because it did not "control Starbucks' employees' wages, hours, or working conditions," and therefore "could not independently interfere with those employees' rights as employees." 

Before we celebrate the on-the-nose correctness of this ruling, we need to focus on the following sentence in the ruling: "Although Littler Mendelson has its own statutory employees, there was no allegation that those employees were affected by the alleged conduct."

Yikes. Did the NLRB just provide a roadmap for holding a law firm accountable for  the acts of its client during union organizing? The above-quoted sentence — drafted by a representative of the most activist, pro-union labor board in history — should create a lot of concern for all management-side lawyers. That sentence seems to suggest that while the employees of the law firm's client cannot hold the lawyers accountable for their anti-organizing activity, it is a whole new ballgame if the law firm's own employees file their own unfair labor practice charge against the employer alleging that the firm's anti-union activity discouraged them from forming their own union. All it will take is one Littler employee to allege that his or her employer's actions on behalf of a client chilled an intent to form a union at the firm, and it seems that the NLRB would be very open to hearing that claim.

That outcome would be very dangerous, as it would chill management-side lawyers from effectively representing their clients. So while we should applaud the NLRB for correctly dismissing this charge against Littler, let's not celebrate until we're 100 percent certain that the other shoes hasn't dropped. Because if it does, I'm not sure how any lawyer will be able to do his or her job representing an employer during union organizing.