Steve Swirsky Quoted in “Starbucks' Election Misconduct Claims Turn Up Heat on NLRB”

The letter Starbucks sent to the National Labor Relations Board earlier this week claiming widespread misconduct in union representation elections could bring additional public scrutiny to the agency, experts said, raising the possibility of investigations and litigation over its handling of the voting process.

The company's letter to NLRB Chair Lauren McFerran and general counsel Jennifer Abruzzo accused board agents of "highly improper, systemic misconduct" when handling Starbucks union representation elections conducted by mail. The letter specifically detailed alleged misconduct in the board's St. Louis regional office, which the company claims tried to cover up its actions, but it also said Starbucks has concerns that similar improprieties have come up in elections in other parts of the country.

Starbucks asked the board and its inspector general to investigate the claims and for the agencyto pause mail-ballot elections at Starbucks stores across the country and only conduct in-person representation elections going forward.

While the allegations in the letter are explosive, experts were split on how the board might respond and what the broader effects of the company's broadside might be. …

Given the board's procedures, Starbucks may first get the opportunity to formally litigate the allegations in the letter if it decides to test the certification of a bargaining unit and raise the claims on appeal, said Steven Swirsky, a management-side attorney at Epstein Becker Green.

"It's not at all certain to me that they're going to have the opportunity at least until they challenge certification and if they can get a circuit court interested in it," Swirsky said.