06/13/2024: Starbucks Found to Have 24 Illegal Work Rules
Got to be a record.
Governed United Security Professionals (Golden SVCS, LLC), 373 NLRB No. 66, 05-CB-299530 (Published Board Decision)
This NLRB decision affirmed an underlying ALJ decision finding that the Respondent union, Governed United Security Professionals, violated Section 8(b)(1)(A) of the NLRA by failing to honor employees' requests to revoke their dues checkoff authorizations after a successful deauthorization election nullified the union security clause in the collective bargaining agreement.
The key legal analysis was:
After the deauthorization election was certified on January 12, 2022, employees' dues checkoff authorizations became revocable at will.
The union violated 8(b)(1)(A) by failing to promptly honor employees' clear requests to revoke their checkoff authorizations made verbally, by email, and by letter.
The union further violated 8(b)(1)(A) by improperly applying its constitutional procedures on timing and method of revocation (by certified mail near anniversary date), which were invalid after the deauthorization.
The Board slightly expanded the ALJ's remedy to cover reimbursement of any employee who tried to revoke checkoff on or after January 18, 2022, not just the 8 named. But it otherwise affirmed the ALJ's findings and conclusions.
Significant Cases Cited
Penn Cork & Closures, Inc., 156 NLRB 411 (1965) - Successful deauthorization vote renders outstanding checkoff authorizations vulnerable to revocation regardless of their terms.
Bedford Can Mfg. Corp., 162 NLRB 1428 (1967) - It is not necessary for revocation to be stated in any particular form if the intent to cancel the existing checkoff authorization is clear.
United Workers of America, Local 621, 360 NLRB 714 (2014) - Employees may effectively revoke checkoff authorizations given or renewed while a union-security clause was in effect after the certification of results of an affirmative deauthorization vote.
This case involves a process, deauthorization, that most people don’t seem to know about. Unionized workers can file a petition with the NLRB to remove the union as their representative. This is called decertification. But unionized workers can also file a UD petition with the NLRB to make it so that the union cannot require payment of dues through a union security clause. This is called deauthorization. This is similar to so-called right-to-work laws, except it is done for a specific bargaining unit.
Presumably the reason you do not see very many deauthorizations is because workers who are upset enough with their union to deauthorize dues checkoff are also upset enough with them to just decertify them as their representative.
Starbucks Corporation, JD-33-24, 09-CA-300652 (ALJ Decision)
In this decision, the ALJ found that Starbucks violated Section 8(a)(1) of the NLRA by maintaining an overly broad and vague "How We Communicate" rule that employees would reasonably construe to discourage engaging in protected concerted activities.
The key points in the ALJ's legal analysis were:
Under Stericycle, Inc., 372 NLRB No. 113 (2023), a work rule is presumptively unlawful if the General Counsel proves it has a reasonable tendency to chill employees' exercise of Section 7 rights. The employer can rebut this by showing the rule advances a legitimate business interest that cannot be achieved through a narrower rule.
Based on prior Board precedent like Casino San Pablo, 361 NLRB 1350 (2014) (rule prohibiting disrespectful conduct toward supervisors unlawfully chills Section 7 activity), Starbucks' rule requiring professional and respectful communications at all times was presumptively unlawful.
Starbucks failed to rebut the presumptive violation by showing its business interests required the broad rule.
However, the ALJ dismissed the allegation that Starbucks violated Section 8(a)(3) and (1) by disciplining employee Angel Williams for her union activity. Applying the Wright Line, 251 NLRB 1083 (1980) standard, the ALJ found insufficient evidence of anti-union animus motivating the discipline. The General Counsel failed to link Williams' corrective action to her union activity rather than her repeated violations of Starbucks' dress code policy on fingernail length.
Starbucks Corporation, JD(SF)-17-24, 28-CA-289622 (ALJ Decision)
This ALJ decision found that Starbucks violated the NLRA in numerous ways on a companywide basis through its maintenance of overly broad work rules, and at four specific stores in the Phoenix metro area through unlawful surveillance, threats, interrogations, and discipline, including the termination of two employees, in response to union organizing campaigns.
Key points in the ALJ's legal analysis:
Applying the standard in Stericycle, Inc., 372 NLRB No. 113 (2023) (rule is presumptively unlawful if employees could reasonably interpret it to restrict Section 7 activity), the ALJ found 24 rules in Starbucks' employee handbook and other corporate policies were overly broad in violation of Section 8(a)(1). This included confidentiality rules, social media policy, recording policy, conflicts of interest policy, a respectful workplace rule, and a rule on how employees communicate.
At the specific stores, the ALJ found multiple Section 8(a)(1) violations, including surveillance and creating the impression of surveillance under the standard in Starbucks Coffee Co., 372 NLRB No. 50 (2023) (whether employer's conduct would reasonably tend to interfere with, restrain or coerce employees); coercive interrogations under the Rossmore House factors; and promulgation of unlawful rules like prohibiting discussion of understaffing issues and keeping union activities secret.
Applying the Wright Line standard for mixed motive discharges, the ALJ found Starbucks violated 8(a)(3) and (1) by discharging employee Millyana Romero because of her union activities, finding Starbucks' stated reasons were pretextual. However, the ALJ dismissed the 8(a)(3) allegation regarding employee Brittney Schmitt, finding Schmitt's conduct in the store on her last day was not protected and that Starbucks established it would have discharged Schmitt for this misconduct even absent union activity.
The ALJ ordered broad remedies including rescission of the unlawful rules on a nationwide basis, reinstatement and backpay for Romero, and a public reading of the notice by a high-level official, finding Starbucks' "broad-based corporatewide attack on its employees' right to choose union representation" warranted these extraordinary measures.
With respect to (1) above, the ALJ found the following 24 rules maintained by Starbucks in its Partner Guide, Store Operations Manual, Weekly Updates, and Standards of Business Conduct to be overly broad in violation of Section 8(a)(1):
A Respectful Workplace is Everyone's Responsibility
Dress Code and Personal Appearance
Personal Telephone Calls and Mail
Social Media
Video Recording, Audio Recording and Photography
Confidentiality
Conflicts of Interest
Media Inquiries
Requests for Partner Information
How We Communicate
Conflict Resolution
Corrective Action
Back cover rule prohibiting unauthorized distribution, use, or photocopying the Partner Guide
Mutual Arbitration Agreement
Community Board Standards in Store Operations Manual
Update to Community Board Standards in April 25, 2022 Weekly Update
Back of House Posters, Notices and Communications rule in Store Operations Manual
Update to Back of House Posters, Notices and Communications rule in August 22, 2022 Weekly Update
Confidentiality provision in January 16, 2023 Weekly Update
How We Treat One Another rule in Standards of Business Conduct
Political Activities rule in Standards of Business Conduct
Implied promise of benefits in 2023 Partner Guide to discourage union support
Implied threats to withhold benefits in 2023 Partner Guide footnotes
Other statements in 2023 Partner Guide implying Starbucks could make unilateral changes, would refuse to bargain, and that union representation would be futile
This is a great case to read to expand your knowledge of what can be considered a coercive rule.
Jewish Family Services of St. Louis, 14-RC-339369 (Regional Election Decision)
This decision by the Regional Director of NLRB Region 14 directs an election in a unit of non-professional and professional employees at Jewish Family Services of St. Louis. The key issue was whether the petitioned-for employer-wide unit of non-professional employees at the Employer's two facilities was appropriate.
The Regional Director applied the following legal principles:
The Board focuses on whether employees share a "community of interest" under United Operations, Inc., 338 NLRB 123 (2002), considering factors like skills, training, job functions, functional integration, employee contact and interchange, terms and conditions of employment, and supervision.
A petitioned-for employer-wide unit is presumptively appropriate under Greenhorne & Omara, Inc., 326 NLRB 514 (1998), and the employer must present detailed evidence to rebut this presumption.
In evaluating the community of interest between different facilities, the Board considers employee skills and working conditions, centralized control of management, functional integration and interchange, geographic proximity, and bargaining history under Exemplar, Inc., 363 NLRB 1500 (2015).
Applying these standards, the Regional Director found the non-professional unit presumptively appropriate and that the Employer failed to rebut the presumption. Though employees had distinct job functions at each facility, the evidence showed centralized management control, regular employee interaction and integration between the facilities, geographic proximity, and similar terms and conditions.
The Regional Director therefore directed a Sonotone self-determination election for the professional employees on whether to join the non-professional unit, and an election in the petitioned-for employer-wide non-professional unit.
Generation Hope, 05-RC-341235 (Regional Election Decision)
In this decision, the Regional Director of NLRB Region 5 directed a self-determination election for a unit of professional and non-professional employees at Generation Hope. The key issues were: (1) whether the Mental Health Coordinator & Counselor classification was professional under Section 2(12) of the NLRA, and (2) whether the standard voter eligibility formula should be modified.
The Regional Director made the following key legal conclusions:
Applying the factors in Section 2(12), the Mental Health Coordinator & Counselor is a professional employee. The work is predominantly intellectual and varied, involving independent judgment and discretion that cannot be standardized, and requires advanced knowledge customarily acquired through higher education, as evidenced by the licensure requirement. Even if not meeting 2(12)(a), it would be professional under 2(12)(b) as the LGPC license requires supervision to progress to full licensure. See Express-News Corp., 223 NLRB 627 (1976) (an employer's degree requirement is persuasive but not dispositive evidence of professional status).
There was insufficient reason to deviate from the standard voter eligibility formula, which looks at employment in the payroll period immediately preceding the direction of election, despite recent hires. The Region does not routinely make exceptions for routine hiring or attrition. See, e.g., Plymouth Towing Co., 178 NLRB 651 (1969). However, applying the standard formula will likely enfranchise the new hires anyway.
The Regional Director therefore directed a self-determination election for the professional employee(s) to vote on inclusion with the non-professional unit, with professionals and non-professionals voting together or separately depending on the outcome of the professional vote, in line with Sonotone Corp. 90 NLRB 1236 (1950).
Alamo Intermediate II Holdings, LLC, 02-RC-319517 (Regional Election Decision)
In this decision, the Regional Director of NLRB Region 2 found that a petitioned-for multi-facility unit limited to the Employer's four New York metropolitan area facilities was appropriate and directed a mail ballot election. The key issues were: (1) whether the petition was appropriate despite the Employer's recent elimination of the Projectionist classification and creation of a Technical Engineer classification; and (2) whether the petitioned-for multi-facility unit limited to New York was appropriate.
Regarding the Projectionist/Technical Engineer issue, the Regional Director applied MJM Studios of New York, Inc., 336 NLRB 1255 (2001), which held that an expanding or contracting unit will not preclude an immediate election if the current workforce is substantial and representative of the anticipated future workforce. He found the transition to the Technical Engineer classification did not preclude an election, as the evidence showed the existing complement of Projectionists was substantial and representative of the planned Technical Engineer workforce.
Regarding the multi-facility unit issue, the Regional Director applied the community of interest factors from Exemplar, Inc., 363 NLRB 1500 (2016), considering skills/duties/working conditions, functional integration, employee contact/interchange, centralized management/supervision, geographic proximity, and bargaining history to determine if the petitioned-for unit was appropriate. While common skills and centralized supervision did not favor a distinct New York unit, the Regional Director found that the functional integration, substantial employee interchange, and close geographic proximity of the New York facilities established a distinct community of interest apart from the excluded facilities. He noted the Board has found that a unit covering all facilities within a standard metropolitan area is appropriate under Acme Markets, Inc., 328 NLRB 1208 (1999) and AT&T Mobility Servcs., LLC, 371 NLRB No. 14 (2021).
The Regional Director therefore found the petitioned-for New York unit appropriate and directed a mail ballot election, finding the eligible employees were scattered by location making mail ballots a better method to maximize participation under San Diego Gas and Elec., 325 NLRB 1143 (1998).
Essentia Health, 18-RC-330714 (Regional Election Decision)
The Regional Director issued a Decision and Direction of Election finding that:
The Board's Healthcare Rule does not apply because the Employer, an integrated health system, does not fit the definition of an "acute care hospital" under the Rule. The Director cited:
Stormont-Vail Healthcare, 340 NLRB 1205 (2003): Board declined to apply Rule to integrated health system.
Virtua Health, Inc., 344 NLRB 604 (2005): Board again declined to apply Rule to healthcare system.
Child's Hospital, 307 NLRB 90 (1992): Board declined to apply Rule to facility that did not resemble a typical free-standing acute-care hospital.
Under American Steel Construction, Inc. 372 NLRB No. 23 (2022), the petitioned-for unit of Advanced Practice Providers (APPs) is appropriate because they share an internal community of interest, are readily identifiable as a group, and are sufficiently distinct from other classifications.
Under the multi-facility unit analysis in Exemplar, Inc. 363 NLRB 1500 (2016) and Stormont-Vail Healthcare, 340 NLRB 1205 (2003), a unit of all APPs across the Employer's East Market is appropriate based on their similar skills, duties and working conditions; centralized control of management and supervision; functional integration of operations; and conformity with the Employer's own administrative grouping.
The Director ordered a mail ballot election, finding it appropriate under San Diego Gas and Elec., 325 NLRB 1143 (1998) due to the geographic dispersion of the unit.