06/16/2024: Two More Starbucks Cases
It's become the Starbucks Labor Relations Board.
Commercial Solar Arizona, LLC, 373 NLRB No. 69, 28-CA-288120 (Published Board Decision)
The Board affirmed the ALJ's dismissal of the allegation that the employer unlawfully discharged employee Jared Shortal. However, the Board's rationale differed from the ALJ’s rationale as the Board found that the evidence did not establish Shortal was discharged but rather suggested that he resigned after being denied a raise.
The Board adopted the ALJ’s decision that the employer violated Section 8(a)(1) by promulgating a rule prohibiting the discussion of wages and rule stating that employees could not claim they were constructively discharged unless they provide written notice of the intolerable work condition leading to the constructive discharge and observe a waiting period.
The Board remanded allegations related to several handbook policies ("Confidentiality," "Personal Records and Employee References," "Standards of Conduct," "Complaint Procedure," and "Whistleblower Protection") for the ALJ to reconsider under the framework set forth in Stericycle, Inc., 372 NLRB No. 113 (2023), which overruled the Boeing Co. framework the ALJ had applied.
However, the Board affirmed the ALJ's finding that the "Phone, Computer, E-mail and Internet Usage" policy was lawful under existing precedent in Caesars Entertainment d/b/a Rio All-Suites Hotel & Casino, 368 NLRB No. 143 (2019).
Starbucks Corporation, JD-37-24, 13-CA-316407 (ALJ Decision)
The General Counsel alleged that Starbucks committed a variety of unfair labor practices. The Administrative Law Judge (ALJ) mostly did not find merit to these allegations.
Section 8(a)(3) - Retaliatory Termination: The ALJ found the General Counsel established a prima facie case of retaliatory termination against Amanda Carelli, the lead union organizer. This was based on evidence of Carelli's protected union activity, Respondent's knowledge of this activity, and the timing of Carelli's termination shortly after the union petition was filed and just before the union vote. However, the ALJ ultimately found that the Respondent met its burden under the Wright Line standard, demonstrating they would have terminated Carelli even without her union activity due to her use of offensive language towards a customer. This conclusion was supported by comparator evidence showing similar disciplinary actions against other employees who used offensive language towards customers.
Section 8(a)(1) - Interrogation: The complaint alleged that District Manager Heller interrogated Carelli about her union activity in early March. The ALJ dismissed this allegation, finding that Carelli was an open union supporter who willingly provided information and challenged Heller during the conversation. This indicated that the questioning was not unlawfully coercive under Rossmore House.
Section 8(a)(1) - Threats: The ALJ found merit to the allegation that the Respondent threatened employees with unspecified reprisals when Heller stated that Carelli was not thinking about her family when she contacted the Union. The ALJ found this statement coercive, as it implied negative repercussions for Carelli's family due to her union support. This finding is consistent with precedent finding that warnings about "being careful" about union activity can be threatening (Gaetano & Associates Inc.).
Section 8(a)(1) - Captive Audience Meetings: The complaint alleged that Respondent held mandatory captive audience meetings where they interfered with employee Section 7 rights. The ALJ dismissed this allegation, finding no evidence that the Respondent made unlawful threats about benefits during these meetings. The ALJ credited Heller's testimony that she merely presented her opinion on the union and provided information about the collective bargaining process.
Section 8(a)(1) - Mandatory Captive-Audience Meetings: The General Counsel conceded that this conduct is permissible under current Board law. Therefore, the ALJ recommended dismissal of this part of the complaint. The GC is hoping the Board, on review, will reverse the case law that states that mandatory captive-audience meetings are lawful.
Starbucks Corporation, JD-35-24, 10-CA-301421 (ALJ Decision)
This decision concerns unfair labor practice charges filed by Workers United (the Union) against Starbucks Corporation (the Respondent or the Company) regarding the discharge of employee Aaron Saxton (Saxton). The decision analyzes three issues.
Issue 1: Whether Saxton's discharge was in violation of Section 8(a)(3) and (1) of the National Labor Relations Act (NLRA)
The ALJ finds that Saxton's participation in a protest against management decisions regarding employee discharge and scheduling policies was protected activity under the NLRA, as it concerned terms and conditions of employment.
The ALJ rejects the Respondent's argument that the Wright Line analysis should be applied in this case. Instead, the ALJ finds that the setting-specific standards apply, specifically the four-factor test in Atlantic Steel.
The ALJ analyzes the four factors:
Place: Saxton's conduct initially occurred inside the store, which weighs against finding his conduct protected.
Subject Matter: Saxton was acting as the Union's steward, presenting employee grievances, which weighs in favor of protection.
Nature: Saxton's conduct, while planned, was not "egregious" or "outrageous." Saxton apologized to customers, assisted one with service, and agreed to move the protest outside. This factor weighs in favor of finding his conduct protected.
Provocation: There was no evidence of unfair labor practices or other provocative conduct by management, weighing against finding Saxton's conduct protected.
Considering all factors, the ALJ concludes that Saxton's conduct was protected, and his discharge violated Section 8(a)(3) and (1) of the NLRA.
The ALJ also applies the Wright Line analysis as an alternative, finding that the General Counsel met the burden of establishing a prima facie case of unlawful discrimination. The Respondent failed to show that it would have taken the same action against Saxton in the absence of his union activity.
Issue 2: Whether the Respondent violated Section 8(a)(5) and (1) of the NLRA by discharging Saxton without prior notice to the Union and/or without affording the Union an opportunity to bargain over the discipline imposed
The ALJ finds that the Respondent did not provide prior notice to the Union or afford it an opportunity to bargain over Saxton's discharge.
The ALJ relies on 800 River Road Operating Co., which held that an employer has no obligation to bargain with a union regarding disciplinary actions imposed on bargaining unit members before negotiation of an initial collective bargaining agreement.
The General Counsel is hoping that the Board will reverse the case law stating that employers do not have an obligation to bargain over these kinds of disciplinary actions.
Issue 3: Whether the Respondent violated Section 8(a)(1) of the NLRA by issuing a subpoena duces tecum on Saxton
The Respondent's subpoena sought:
All audio or video recordings of any managers relating to the allegations in the complaint, including all recordings made on July 18.
Communications between Saxton and the Union concerning his termination, including communications regarding the events of July 18.
The ALJ applies the three-step test established in Guess?, Inc. to determine whether the subpoena's requests were permissible.
Regarding request one, the ALJ finds that the subpoena sought relevant information and does not show an illegal objective. The subpoena instructed Saxton to redact identifying information and did not seek recordings without managers present, minimizing concerns regarding Section 7 confidentiality.
Regarding request two, the ALJ finds that communications between employees and a union are quasi-privileged from disclosure, and no exception applies in this case. The ALJ concludes that this request was improper under the Guess? test.
The ALJ concludes that the Respondent violated Section 8(a)(1) by issuing request two of the subpoena, but did not violate Section 8(a)(1) by issuing request one.
The ALJ denies the General Counsel's request for special remedies, such as posting a video and sending a letter of apology, as the Board has consistently rejected these remedies in recent Starbucks cases.