05/14/2024: Three More Starbucks Cases
They never end.
RadNet Management Inc., 373 NLRB No. 58, 31-CA-235878 (Published Board Decision)
Summary
Parties Involved:
Respondent: RadNet Management Inc. d/b/a San Fernando Valley Advanced Imaging Center
Charging Party: National Union of Healthcare Workers (NUHW)
Background: The case revolves around allegations that RadNet Management Inc. violated Sections 8(a)(5) and (1) of the National Labor Relations Act by laying off an employee, Veronica Atwater, without providing the National Union of Healthcare Workers (NUHW) notice and an opportunity to bargain over the decision and its effects. The complaint was initially settled through an informal agreement, which the Respondent allegedly failed to comply with, leading to the reissuance of the complaint.
ALJ Decision: Administrative Law Judge (ALJ) Mara-Louise Anzalone found that RadNet had indeed failed to comply with the terms of the settlement agreement by not reinstating Atwater or making her whole, and that this failure constituted a breach of the agreement. The ALJ also determined that the Respondent’s layoff of Atwater without prior notice to the Union and bargaining was unlawful.
Board Decision: The National Labor Relations Board (NLRB) affirmed the ALJ's decision, agreeing that the Regional Director acted within her authority in reissuing the complaint after the Respondent's non-compliance with the settlement agreement. The Board adopted the ALJ's findings and conclusions, ordering RadNet to cease and desist from its unlawful practices, reinstate Atwater, and make her whole for any losses incurred due to the unlawful layoff.
Legal Analysis
1. Authority of the Regional Director: The Board affirmed that the Regional Director had the authority to reissue the complaint under 29 C.F.R. §101.9(e)(2), which allows for further proceedings if a respondent fails to comply with an informal settlement agreement. This interpretation was supported by precedent in Geodis Logistics, LLC, establishing that questions regarding compliance with settlement agreements are appropriately litigated before a judge and, if necessary, the Board.
2. Breach of Settlement Agreement: The Board upheld the ALJ’s finding that RadNet breached the settlement agreement by failing to reinstate Atwater and make her whole, which justified setting aside the agreement and reissuing the complaint. The ALJ rejected RadNet’s argument that partial compliance (such as posting notices and expunging records) negated its failure to reinstate Atwater.
3. Unilateral Changes and Bargaining Obligations: The ALJ found, and the Board agreed, that the layoff of Atwater without prior notice to the Union and bargaining constituted a violation of Sections 8(a)(5) and (1) of the Act. This decision was grounded in established precedent, such as NLRB v. Katz, which mandates that economic layoffs are a mandatory subject of bargaining.
Starbucks Corporation, JD(NY)-11-24, 29-CA-305960 (ALJ Decision)
Summary
Background: The case involves allegations that Starbucks Corporation maintained an overly broad and discriminatory rule restricting the use of logos, writings, or graphics on clothing worn by its store partners, specifically at the Forest and Bard store in Staten Island, New York. The General Counsel argued that Starbucks prohibited employees from wearing union-related apparel while allowing other dress code violations. The case also examined whether Starbucks enforced its dress code more strictly in response to union activities and whether it unlawfully prohibited employees from wearing stickers with QR codes referencing the temporary closure of the Forest and Bard store.
Findings of Fact:
Starbucks’ dress code prohibits logos, writings, or graphics on employees' clothing except for a small manufacturer's logo.
Employees Robin Smith and Michael Thompson testified about specific incidents where they were asked to remove union-related apparel or stickers.
The dress code policy allows for exceptions, such as wearing promotional or network shirts, Black Lives Matter (BLM) shirts, and holiday or spirit wear (e.g., Halloween costumes, ugly Christmas sweaters).
ALJ’s Analysis:
Maintaining an Overly Broad Dress Code:
The ALJ found that Starbucks’ dress code prohibiting logos, writings, and graphics was overly broad and unlawfully restricted employees' rights to display union insignia.
The decision referenced Republic Aviation Corp. v. NLRB, establishing that employees have the right to wear union insignia at work unless the employer can show special circumstances that justify restrictions.
Selective Enforcement of Dress Code:
Starbucks was found to have enforced its dress code selectively by prohibiting union-related apparel while allowing other violations, such as BLM shirts and holiday attire.
The ALJ concluded that this selective enforcement constituted discrimination against union activities, violating Section 8(a)(1) of the National Labor Relations Act (NLRA).
QR Code Stickers:
The ALJ determined that prohibiting employees from wearing QR code stickers related to the store’s closure was a violation of Section 8(a)(1) of the NLRA.
The stickers were deemed a form of protected, concerted activity related to working conditions and employment terms.
Stricter Enforcement in Response to Union Activities:
The ALJ found insufficient evidence to support the claim that Starbucks more strictly enforced its dress code in response to union activities.
The decision to dismiss this allegation was based on the lack of a clear pattern of enforcement before the union organizing campaign.
Conclusion of Law:
Starbucks violated Section 8(a)(1) of the NLRA by maintaining an overly broad dress code, selectively enforcing this dress code against union-related apparel, and prohibiting QR code stickers.
The allegation of stricter enforcement in response to union activities was dismissed.
Order and Remedy:
Starbucks is ordered to cease and desist from maintaining the overly broad dress code and from selectively enforcing it against union-related apparel.
Starbucks must rescind or revise the dress code rule to clarify that it does not prohibit union insignia or stickers related to employment terms.
Notices must be posted at the Forest and Bard store and distributed electronically, informing employees of the decision and their rights.
Significant Cases Cited
Republic Aviation Corp. v. NLRB — Employees have the right to wear union insignia at work, and any employer limitation on this right is presumptively invalid unless justified by special circumstances.
Tesla, Inc. — Employers must prove special circumstances that outweigh employees’ Section 7 rights to restrict the display of union insignia, even if alternative displays are allowed.
Home Depot USA — An employer’s public image defense must be substantiated by a consistent and carefully cultivated public image to justify restrictions on union insignia.
Floridian Hotel of Tampa, Inc. — Mere contact with customers does not justify prohibiting the wearing of union buttons or insignia.
Great Plains Coca-Cola Bottling Co. — The right to display union insignia extends to prounion T-shirts, and restrictions require special circumstances justification.
Starbucks Corporation, JD-28-24, 15-CA-296254 (ALJ Decision)
Summary
Background: The case involves allegations that Starbucks Corporation violated Sections 8(a)(3) and (1) of the National Labor Relations Act (NLRA) by discharging employee Billie Nyx due to his union and protected concerted activities, including participating in a protected strike. Additional allegations include threatening employees with disciplinary action for their union activities and maintaining or disparately enforcing a rule prohibiting employees from writing on the store's whiteboard or posting on the bulletin board.
Findings of Fact:
Union Activities:
Employees at the Maple Street store, including Nyx, began organizing with the Union in early 2022. Nyx was a key organizer, engaging in various union activities such as wearing union pins, discussing the union with colleagues, organizing demonstrations, and giving media interviews.
On May 1, 2022, Nyx and other employees decided to close the store early in protest of understaffing and demanding a two-person closing shift.
Discharge of Nyx:
Nyx was discharged on May 17, 2022. The stated reasons included defiance, disrespectful behavior, and insubordination for closing the store early without authorization and challenging management decisions.
The ALJ found that Nyx's actions were part of protected concerted activities and that Starbucks discharged him due to his union activities and protected strike, violating Sections 8(a)(3) and (1) of the NLRA.
Threatening Statements and Work Rule Enforcement:
On June 29, 2022, Starbucks store manager Carlton Heard told employee Caitlyn Pierce that posting on the communications board, especially union flyers, would result in discipline. This statement was found to violate Section 8(a)(1) as it threatened employees for their union activities.
The ALJ did not find sufficient evidence to support the allegation of disparate enforcement of the work rule regarding the communications board.
Legal Analysis:
1. Discharge of Nyx:
Legal Standard: The ALJ applied the Atlantic Steel test, considering the place of the discussion, the subject matter, the nature of the outburst, and whether it was provoked by an unfair labor practice.
Conclusion: Nyx's actions were protected concerted activities. His conduct during the telephone discussions with managers, although confrontational, did not lose the protection of the Act. Starbucks violated Sections 8(a)(3) and (1) by discharging Nyx for engaging in these activities.
2. Threatening Statements and Work Rule:
Legal Standard: Under Farm Fresh Co., the test is whether the conduct or statements have a reasonable tendency to interfere with, restrain, or coerce employees’ Section 7 rights.
Conclusion: Heard’s statements on June 29, 2022, were found to have a reasonable tendency to interfere with employees’ Section 7 rights, thus violating Section 8(a)(1). The rule communicated by Heard was found to be presumptively unlawful as it was coercive regarding union activities. However, the allegation of disparate enforcement was dismissed due to lack of evidence.
Significant Cases Cited
Atlantic Steel Co. — The Board considers factors such as place, subject matter, nature of the outburst, and provocation by employer's unfair labor practices to determine if an employee's conduct during protected activities loses protection.
Lion Elastomers LLC — Employees’ statutory rights under the NLRA are not subject to civility obligations, and the Atlantic Steel test is used to determine if misconduct during protected activity loses protection.
NLRB v. Washington Aluminum Co. — Strikes and work stoppages concerning working conditions are protected under Section 7 unless the activity is unlawful, violent, or otherwise indefensible.
First American Enterprises d/b/a Heritage Lakeside — Employers unlawfully threaten reprisals if employees violate newly disseminated illegal rules, impacting Section 7 rights.
Register Guard — Personal employee communications are distinct from union solicitations, and discriminatory enforcement claims require showing different treatment of similar solicitations.
Stericycle, Inc — An employer's work rule is presumptively unlawful if it can be reasonably interpreted as coercive, unless the employer proves it advances a substantial business interest and is narrowly tailored.
Starbucks Corporation, 04-RD-328166 (Regional Election Decision)
Summary
Michael Simonelli filed a petition on October 18, 2023, seeking to decertify Workers United as the exclusive collective-bargaining representative for employees at the Starbucks store located at 600 S. 9th St., Philadelphia, Pennsylvania (Store 9536). The Union was certified as the representative of the unit following an election held from May 2 through May 23, 2022.
On November 6, 2023, an Order to Show Cause was issued, indefinitely postponing the hearing and directing the parties to submit their positions regarding whether the petition should be dismissed based on unfair labor practices (ULPs) alleged in multiple cases. The General Counsel and the Union argued for dismissal of the petition, while the Petitioner and Employer argued for its continuation.
The decision reviewed allegations from several cases involving ULPs by Starbucks:
Cases 04-CA-294636: Allegations included threats to employees regarding union support, mandatory anti-union meetings, overly broad dress code rules, and stricter enforcement of those rules in retaliation for union activities.
Cases 19-CA-294579 et al.: Allegations of promising benefits to non-unionized stores while withholding benefits from unionized ones.
Cases 01-CA-305952 et al.: Allegations of refusing to bargain for a first contract and unreasonably delaying or refusing to provide requested information.
Cases 19-CA-303717 et al.: Allegations included maintaining a rule against confidential information and prohibiting unionized store employees from participating in certain benefits.
Cases 13-CA-305908 et al.: Allegations of unreasonably delaying or refusing to provide information requested by the Union.
The Regional Director dismissed the petition, subject to reinstatement after the disposition of the pending ULP cases. The decision concluded that the ULPs, if proven, warranted an affirmative bargaining order and an extension of the certification year, which would preclude a question concerning representation at the time the petition was filed.
Legal Principles and Analysis:
Merit-Determination Dismissals: As established in Rieth-Riley Construction Co., the Board permits Regional Directors to dismiss petitions when there are ULPs that, if proven, would preclude a fair election or taint the petition.
Master Slack Test: Used to determine if there is a causal connection between ULPs and employee disaffection leading to a decertification petition. Factors include the timing of ULPs relative to the petition, the nature and effect of the ULPs, and their impact on employee morale and union support.
Affirmative Bargaining Orders: Under Mar-Jac Poultry Co., and Big Three Industries, if an employer's refusal to bargain or surface bargaining during the certification year is proven, the certification year can be extended, rendering a decertification petition untimely.
Significant Cases Cited
Rieth-Riley Construction Co. — Merit-determination dismissals remain available under the Election Protection Rule, allowing dismissal of petitions tainted by concurrent ULP allegations.
Master Slack Corp. — Establishes a test for determining whether ULPs caused employee disaffection leading to a decertification petition, focusing on timing, nature, and impact of the ULPs.
Mar-Jac Poultry Co. — An employer's refusal to bargain warrants an extension of the certification year to prevent the employer from benefiting from its own failure to bargain.
Big Three Industries — Dismissal of a decertification petition is appropriate when an employer engages in surface bargaining during the certification year, necessitating an affirmative bargaining order.
Overnite Transportation Co. — Dismissal of a representation petition is warranted when there are concurrent ULP complaints that would interfere with employee free choice and are inconsistent with the petition.
Riverside Healthcare System, 21-RC-317216 (Regional Election Decision)
Background: The Service Employees International Union, Local 121RN (Petitioner) filed a petition for an Armour-Globe self-determination election to ascertain whether unrepresented registered nurses (RNs) working at Riverside Community Hospital in seven specific job classifications wish to join an existing unit of RNs represented by the Petitioner.
Issues and Positions of the Parties:
Employer's Position: The Employer argued that the petitioned-for RNs were statutory supervisors and managerial employees, thus excluded from union representation. The Employer contended that these RNs have the authority to effectively recommend discipline and are involved in policy formulation.
Petitioner's Position: The Petitioner maintained that the Employer did not provide evidence to support its claims and argued that the RNs did not meet the criteria for being considered supervisors or managerial employees under the Act.
Decision: The Regional Director concluded that the petitioned-for RNs are neither statutory supervisors nor managerial employees. Therefore, the petitioned-for unit is appropriate for an Armour-Globe self-determination election.
Key Findings:
Supervisory Status:
The Employer failed to provide specific evidence that the RNs effectively recommend discipline or exercise independent judgment in a supervisory capacity.
The RNs' duties involved routine compliance and data collection activities, without actual authority over other employees.
Managerial Employee Status:
The Employer did not demonstrate that the RNs formulate or effectuate high-level management policies. Their roles were limited to adhering to existing policies and providing recommendations within the constraints of established protocols.
Significant Cases Cited:
Armour & Co. — Established the principle that employees in newly created positions or classifications should have the opportunity to vote on whether they wish to be included in existing bargaining units.
Globe Machine & Stamping Co. — Permitted employees to vote on whether they wish to be represented by a union in a self-determination election.
Oakwood Healthcare, Inc. — Provided guidelines for assessing whether employees are statutory supervisors based on the use of independent judgment and supervisory authority.
NLRB v. Yeshiva University — Defined managerial employees as those who formulate and effectuate management policies by making operative decisions on behalf of their employer.