08/19/2024: Starbucks Case Suggests Board Will Soon Overturn Care One

Employers may soon need to bargain over discretionary discipline before there is a CBA.

Starbucks Corporation, 373 NLRB No. 83, 02-CA-303077 (Published Board Decision)

Background and Facts:

This case involves Starbucks Corporation and Workers United, primarily concerning the termination of employee Rhythm Heaton. The Union had been certified as the collective bargaining representative for the employees at Starbucks' Astor Place Store. Heaton, a shift supervisor, was discharged on August 17, 2022, for alleged attendance violations. The Union argued that the termination was unlawful under Sections 8(a)(3) and (1) of the National Labor Relations Act (NLRA), claiming it was due to Heaton's involvement in union activities. Additionally, the Union contended that Starbucks failed to bargain over the decision to terminate Heaton and over the effects of that decision, violating Section 8(a)(5) and (1). The case was initially heard by Administrative Law Judge (ALJ) Benjamin W. Green, who issued a decision on July 24, 2023. Starbucks filed exceptions, leading to this Board decision.

ALJ Decision vs. NLRB Decision:

1. ALJ Decision:

   • The ALJ found that Starbucks violated Section 8(a)(3) and (1) by unlawfully terminating Heaton due to their union activities. However, the ALJ dismissed the Section 8(a)(5) and (1) allegations, which pertained to Starbucks’ failure to provide the Union with requested information and to bargain over the effects of the discharge. The ALJ relied on the Care One precedent, which holds that an employer does not have an obligation to bargain over disciplinary decisions if they are consistent with established policy.

2. NLRB Decision:

   • The Board affirmed the ALJ’s findings that Starbucks violated Section 8(a)(3) and (1) by terminating Heaton due to union involvement. However, the Board reversed the ALJ's dismissal of the Section 8(a)(5) and (1) allegations concerning the failure to provide requested information. The Board determined that Starbucks had an obligation to provide the Union with the requested information relevant to the discharge, which is critical for the Union to perform its duties as the collective bargaining representative. The Board severed the remaining allegations regarding the failure to bargain over the decision and its effects, retaining them for further consideration.

Significant Cases Cited:

1. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967): Established that an employer's duty to bargain includes providing the union with information relevant to the union's role as a bargaining representative.

2. 800 River Road Operating Co., LLC d/b/a Care One at New Milford, 369 NLRB No. 109 (2020): Held that employers have no obligation to bargain over discretionary disciplinary actions if conducted according to an established policy.

3. Permanente Medical Group, Inc., 372 NLRB No. 51 (2023): Affirmed the duty to provide information to unions as essential for them to perform their statutory duties.

4. Teachers College, Columbia University, 365 NLRB No. 86 (2017): Reinforced the presumption that information related to terms and conditions of employment is relevant and must be provided to the union.

The most significant thing about this case is that the Board severed and retained for further consideration the question of whether Starbucks violated the NLRA by “failing and refusing to engage in bargaining over the decision and the effects of the decision to terminate bargaining unit employee Heaton.” Under current Board law (Care One), in the period after a union wins an election but before the union secures a collective-bargaining agreement, employers do not have an obligation to bargain over discretionary discipline made in accordance with an established disciplinary policy or practice. The NLRB General Counsel (GC) has been trying to get this precedent reversed and to establish a rule that employers do have to bargain over discretionary discipline during this period. The fact that the Board chose to retain the issue rather than just apply Care One to dismiss the charge signals that it is likely to overrule Care One in a subsequent decision.

TransPerfect Remote Interpreting, Inc., JD(SF)-24-24, 28-CA-297272 (ALJ Decision)

This case involves allegations that TransPerfect Remote Interpreting, Inc. violated Sections 8(a)(1) and 8(a)(4) of the National Labor Relations Act through its treatment of employee Julian Santana and maintenance of certain workplace rules.

Key findings:

1. Respect Rules Violation: The ALJ found that portions of TransPerfect's "Respect" rules in its Employee Handbook violated Section 8(a)(1). Applying the test from Stericycle, Inc., 372 NLRB No. 113 (2023), the ALJ determined the rules could reasonably be construed by employees to cover protected Section 7 activity that a manager might deem disrespectful. The savings clause was insufficient to cure the overbreadth.

2. No Unlawful Statements: The ALJ dismissed allegations that supervisors made unlawful statements threatening employees for engaging in protected activities. The ALJ found the statements were reasonable attempts to redirect unprofessional behavior rather than threats against protected activity.

3. No Unlawful Discipline/Discharge for Protected Activity: The ALJ concluded Santana did not engage in protected concerted activity when complaining about overtime and breaks, as his actions were purely individual. Even assuming protected activity, the ALJ found the General Counsel failed to establish a prima facie case under Wright Line, 251 NLRB 1083 (1980) (setting forth burden-shifting framework for analyzing discriminatory discharge allegations), due to lack of evidence of animus.

4. No Violation Under Continental Group Theory: While finding the General Counsel established a prima facie case under Continental Group, 357 NLRB 409 (2011) (discipline under overbroad rule may violate the Act), the ALJ concluded TransPerfect established valid affirmative defenses by showing Santana's conduct interfered with operations and included maliciously false statements unprotected by the Act.

5. No Section 8(a)(4) Violation: The ALJ dismissed allegations that TransPerfect violated Section 8(a)(4), which prohibits retaliation for participating in Board processes, because there was no evidence Santana engaged with the NLRB prior to his termination.

Remedy: The ALJ ordered TransPerfect to cease and desist from maintaining the overly broad Respect rules, rescind the unlawful portions, and post a notice.

Key cases cited:

• Stericycle, Inc., 372 NLRB No. 113 (2023): Sets forth test for evaluating facially neutral workplace rules.

• Wright Line, 251 NLRB 1083 (1980): Establishes framework for analyzing alleged discriminatory discipline.

• Continental Group, 357 NLRB 409 (2011): Addresses when discipline pursuant to an overbroad rule violates the Act.

• TNT Logistics North America, Inc., 347 NLRB 568 (2006): Holds that maliciously false statements lose protection of the Act.

• Nash v. Florida Industrial Commission, 389 U.S. 235 (1967): Interprets Section 8(a)(4) as protecting employees from coercion against reporting possible unfair labor practices to the Board.

BJ's Wholesale Club, Inc., JD(NY)-20-24, 29-CA-317035 (ALJ Decision)

This ALJ decision addresses unfair labor practice charges and election objections filed by UFCW Local 342 against BJ's Wholesale Club following a representation election that the union lost 14-7. The key issues and analysis are:

1. Mandatory Meetings: The ALJ found that BJ's did not violate the NLRA by holding mandatory anti-union meetings with employees before the election. Citing Babcock & Wilcox, 77 NLRB 577 (1948), the ALJ noted that current Board law permits such "captive audience" meetings.

2. Open Door Policy: The ALJ dismissed allegations that BJ's unlawfully threatened employees with loss of its open door policy if they unionized. Applying Tri-Cast, Inc., 274 NLRB 377 (1985), the ALJ found BJ's statements were permissible campaign speech about changes unionization could bring.

3. Interrogations: The ALJ found that BJ's Club Manager Andre Batts violated Section 8(a)(1) by interrogating two employees about their union sympathies in his office. Applying factors from Rossmore House, 269 NLRB 1176 (1984), the ALJ deemed the questioning coercive given Batts' high position and the employees' lack of open union support.

4. Election Objections: The ALJ overruled the union's election objections, finding the interrogations and a manager's statement to an employee to vote "if he knows what's good for him" were isolated incidents without evidence of dissemination to other voters. Citing Metz Metallurgical Corp., 270 NLRB 889 (1984), the ALJ found this conduct de minimis and insufficient to warrant overturning the election results.

5. Remedies: The ALJ ordered BJ's to cease and desist from interrogations and post a notice, but denied the General Counsel's request for a notice reading, finding it unwarranted given the limited violations.

Key cases cited:

• Babcock & Wilcox, 77 NLRB 577 (1948): Permits employers to hold mandatory anti-union meetings.

• Tri-Cast, Inc., 274 NLRB 377 (1985): Allows employers to inform employees that unionization will change how they deal with management.

• Rossmore House, 269 NLRB 1176 (1984): Sets factors for analyzing coerciveness of interrogations.

• Metz Metallurgical Corp., 270 NLRB 889 (1984): Finds isolated misconduct affecting few employees insufficient to overturn election.

• Starbucks Corp., 372 NLRB No. 122 (2023): Requires electronic distribution of notices if employer customarily communicates electronically with employees.

Planned Parenthood: Shasta-Diablo, Inc. D/B/A Planned Parenthood Northern California, 32-RC-343909 (Regional Election Decision)

This decision by NLRB Region 32 Acting Regional Director Christy Kwon addresses a petition filed by Service Employees International Union, Local 1021 seeking to add Lead Clinicians to an existing bargaining unit at Planned Parenthood Northern California. The key issue was whether Lead Clinicians are supervisors under Section 2(11) of the National Labor Relations Act.

Key points:

1. Supervisory Status: The decision applies the three-part test from NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001), which requires that to be a supervisor, an individual must: (1) have authority to engage in any of the 12 listed supervisory functions, (2) use independent judgment in exercising that authority, and (3) hold the authority in the interest of the employer.

2. Burden of Proof: The employer bears the burden of proving supervisory status by a preponderance of the evidence, citing Dean & Deluca, 338 NLRB 1046 (2003).

3. Hiring Authority: The decision found insufficient evidence that Lead Clinicians have authority to hire or effectively recommend hiring, citing Union Square Theatre Management, Inc., 326 NLRB 70 (1998) and Fred Meyer Alaska, Inc., 334 NLRB 646 (2001).

4. Evaluation and Promotion Authority: The decision concluded that Lead Clinicians' involvement in performance evaluations was insufficient to confer supervisory status, citing Modesto Radiology Imaging, Inc., 361 NLRB 888 (2014) and Cape Cod Nursing & Retirement Home, 329 NLRB 233 (1999).

5. Disciplinary Authority: The decision found insufficient evidence that Lead Clinicians have independent authority to discipline or effectively recommend discipline, citing Veolia Transportation Services, Inc., 363 NLRB No. 98 (2016).

6. Responsible Direction: The decision found insufficient evidence of responsible direction, applying the standard from Oakwood Healthcare, Inc., 348 NLRB 686 (2006).

7. Secondary Indicia: The decision noted that secondary indicia alone are insufficient to establish supervisory status, citing Stanford New York LLC d/b/a Stanford Hotel, 344 NLRB No. 69 (2005).

The Regional Director concluded that the employer failed to meet its burden of proving Lead Clinicians are supervisors and directed a mail ballot election for them to vote on joining the existing bargaining unit.

Significant cases cited:

1. NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Established the three-part test for supervisory status under the NLRA.

2. Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Provided definitions for key terms related to supervisory status, including "assign," "responsibly direct," and "independent judgment."

3. Veolia Transportation Services, Inc., 363 NLRB No. 98 (2016): Held that disciplinary authority must lead to personnel action without independent investigation or review by upper management to establish supervisory status.

4. Modesto Radiology Imaging, Inc., 361 NLRB 888 (2014): Held that the ability to evaluate others' work performance alone is not enough to confer supervisory status.

5. Cape Cod Nursing & Retirement Home, 329 NLRB 233 (1999): Found supervisory status where charge nurses' ratings were the sole basis for nursing assistants' wage increases.