Highlights from SHRM-Memphis June Meeting

conduct, including raising wages, promising benefits, closing stores with active organizing drives and threatening employees. Eventually, the Board alleges, Starbucks discharged seven union activist employees at five stores over the course of six weeks. In this case the Regional Director is seeking a nationwide cease and desist order that would apply to Starbucks facilities nationwide, which would be an extraordinary remedy if granted. This request also remains pending.

Lastly on this category, in March of this year the Board filed for a Section 10 (j) injunction against Amazon in Staten Island. Interestingly, the petition was not filed for more than a year after the discharge and was filed a month or so before a scheduled election. The Board sought reinstatement of an employee, alleging he was let go because he engaged in organizing activity. Amazon responded that it discharged the employee because he engaged in a public, vile and profane tirade against a female coworker, both over a bullhorn and over social media. Amazon takes the position that no employer could or would tolerate such conduct in a civilized workplace. The court has not ruled on this petition as of this writing.

In short, the Board is making good on its promise to seek Section 10(j) relief in the organizing context. It remains to be seen how receptive the federal courts will be to such requests.

As noted above, the Board has listed circumstances warranting a Gissel bargaining order as appropriate for Section 10 (j) relief. While used less often, the potential consequences are frankly scary.

Your first question may be: what in the word is a Gissel bargaining order? In 1969 the U.S. Supreme Court confirmed the Board’s ability to order an employer to recognize and bargain with a union where, although an employer may have prevailed in an election, there is evidence that the union had previously obtained union authorization cards from a majority of the employees. The name of the case was NLRB v . Gissel Packing Company. Thus the name, Gissel bargaining order.

Of course, a court cannot order an employer to bargain simply because a union lost an election and once had a card majority. The evidence must show that the employer committed serious unfair labor practices that would effectively prevent a fair election or even a fair rerun election. This is a high bar to get over, and Gissel bargaining orders do not issue often.

The scary part is that the current General Counsel, Ms. Abruzzo, believes in pursuing Section 10 (j) injunctions aggressively, and that the Board can seek an interim Gissel bargaining order via a petition for Section 10 (j) relief. In other words, an employer who has not lost an election, or who recently prevailed in one, could be ordered to bargain with the union during the pendency of litigation related to whether or not alleged unfair labor practices impacted the ability to conduct a fair election to the point that a permanent bargaining order should be implemented. To put it mildly, that would be an awkward position for the employer!

Howard B. Jackson, Member SHRM-Memphis – June Meeting

Speakers were (L-R) Kellie Turnage, Owner, Turnage Restoration; Michael Drake, President, JM Drake Enterprises LLC; Brad Federman, CEO of PerformancePoint, and Charles Winton, Director, Lakeside Behavioral Health

June 21, 2022

David Dufour, SHRM-Memphis President; Ross Kamens, Memphis Chef/Consultant; and Dr. Kathy Tuberville, SHRM-Memphis VP-Programs

shrm-memphis.org