09/19/2024: More Illegal Subpoena Requests from Starbucks

The Starbucks Labor Relations Board keeps on chugging.

Longmont United Hospital and CommonSpirit Health, as a single Employer, 373 NLRB No. 97, 27-CA-291664 (Published Board Decision)

This NLRB decision involves unfair labor practice charges filed against Longmont United Hospital and Centura Health (collectively "Respondent") by the National Nurses Organizing Committee/National Nurses United (the Union). The key points of the legal analysis are:

1. The Board affirmed the Administrative Law Judge's (ALJ) findings that the Respondent violated Section 8(a)(3) and (1) of the National Labor Relations Act by excluding nurses at its Longmont facility from four systemwide wage and benefit increases because they had voted for union representation.

2. The Board applied the framework from NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967), which holds that if an employer's conduct is "inherently destructive" of employee rights, no proof of anti-union motivation is needed, but if the effect is "comparatively slight," the employer must show legitimate justifications.

3. The Board found the Respondent's conduct had at least a "comparatively slight" effect on employee rights, shifting the burden to the Respondent to show legitimate justifications.

4. The Board rejected the Respondent's claim that it was maintaining the status quo pending resolution of election challenges, finding this was not a legitimate justification for withholding systemwide increases.

5. The Board affirmed the ALJ's finding that the Respondent violated Section 8(a)(5) by unilaterally discontinuing its practice of conducting annual fall wage reviews and granting increases based on those reviews.

6. The Board affirmed the ALJ's finding that the Respondent independently violated Section 8(a)(1) by announcing to all employees that the Longmont nurses were excluded from the increases due to their union activities.

7. The Board ordered additional remedies beyond those recommended by the ALJ, including notice reading to the Longmont nurses and notice mailing to current and former unit employees.

Key cases cited:

• NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967): Established the framework for analyzing facially discriminatory policies under Section 8(a)(3).

• Woodcrest Health Care Center, 366 NLRB No. 70 (2018): Applied Great Dane framework to find 8(a)(3) violation for withholding benefits from employees involved in representation election.

• Mission Foods, 350 NLRB 336 (2007): Found 8(a)(5) violation for unilaterally discontinuing established practice of annual wage increases.

AIRGAS USA, LLC, 373 NLRB No. 102, 31-CA-226568 (Published Board Decision)

The case stems from allegations that Airgas USA, LLC committed multiple unfair labor practices, including withholding wage increases, making unilateral changes to work schedules, and laying off employees without bargaining with the union. The primary issues addressed by the Board include whether Airgas violated Sections 8(a)(1), (3), and (5) of the National Labor Relations Act (NLRA) by unilaterally changing terms of employment without providing the union an opportunity to bargain, and whether Airgas acted discriminatorily by withholding an October 2018 wage increase.

The Administrative Law Judge (ALJ) had previously issued a decision on February 25, 2022, finding in favor of the General Counsel and the Union on most counts. Airgas appealed, and the Board affirmed many of the ALJ’s findings with some modifications.

1. Unilateral Changes to Terms and Conditions of Employment:

The Board affirmed the ALJ’s finding that Airgas violated Section 8(a)(5) by unilaterally adjusting work schedules, reducing hours, changing overtime procedures, and laying off employee Cameron Desborough. Under NLRB v. Katz, 369 U.S. 736 (1962), an employer cannot make unilateral changes to terms and conditions of employment during bargaining negotiations without consulting the union. Airgas failed to notify or bargain with the union before implementing these changes, violating its duty to bargain in good faith.

2. Layoff of Cameron Desborough:

The Board concluded that the layoff of Cameron Desborough was presented to the union as a "fait accompli," denying the union the chance to bargain over the decision. The employer provided only five days’ notice before implementing the layoff, which did not allow for meaningful bargaining.

3. Withholding of October 2018 Wage Increase:

The Board agreed with the ALJ’s finding that Airgas violated Section 8(a)(3) and (1) by withholding the October 2018 wage increase from union-represented employees while granting it to non-represented employees. The decision to withhold the increase was motivated by union animus, as evidenced by Airgas’ statements warning employees that unionization would lead to the loss of the wage increase.

4. Remedial Actions:

The Board ordered Airgas to rescind the unilateral changes to employee schedules, hours, and overtime, and to reinstate Desborough with backpay. Additionally, the Board imposed compensation for any direct or foreseeable pecuniary harms suffered by employees as a result of Airgas’ actions. This included both backpay and compensation for other harms, such as reasonable search-for-work expenses and interim employment costs.

Significant Cases Cited:

1. NLRB v. Katz, 369 U.S. 736 (1962): Establishes that employers cannot make unilateral changes to terms and conditions of employment while bargaining with a union.

2. Wright Line, 251 NLRB 1083 (1980): Provides the framework for determining whether an employer’s action is motivated by anti-union animus.

3. Bottom Line Enterprises, 302 NLRB 373 (1991): Reinforces the employer’s obligation to refrain from unilateral changes while negotiating an initial collective bargaining agreement.

4. Great Dane Trailers, Inc., 388 U.S. 26 (1967): Defines the standard for employer actions that are inherently destructive of employee rights.

5. Thryv, Inc., 372 NLRB No. 22 (2022): Expands the scope of remedies for unfair labor practices to include direct and foreseeable pecuniary harms.

Starbucks Corporation, JD(NY)-21-24, 29-CA-309779 (ALJ Decision)

The case involves Starbucks Corporation and its interactions with employees involved in union organizing efforts, specifically at its Great Neck, New York location. The General Counsel alleged that Starbucks violated Sections 8(a)(1) and 8(a)(4) of the National Labor Relations Act (NLRA). The main issue centered around Starbucks issuing subpoenas to employees and union representatives as part of a separate legal case, Poor v. Starbucks Corp., and whether these subpoenas interfered with employees' Section 7 rights.

The case was part of a broader context of unionization activities at various Starbucks locations, including Buffalo and Great Neck, where Starbucks had previously been accused of engaging in unfair labor practices (ULPs). In this decision, the Administrative Law Judge (ALJ) Benjamin W. Green examined whether the subpoenas issued in the Poor case violated the NLRA.

Legal Issues:

1. Issuing Subpoenas to Union and Employees (Section 8(a)(1)):

   • Starbucks issued subpoenas duces tecum (for documents) and subpoenas ad testificandum (for testimony) to current and former employees, as well as a union representative. These subpoenas were part of a federal case (Poor v. Starbucks Corp.) under Section 10(j) of the NLRA, which deals with temporary injunctive relief in labor disputes.

   • The General Counsel argued that these subpoenas unlawfully sought information related to employees' protected union activity, violating Section 8(a)(1) of the NLRA by interfering with employees' Section 7 rights.

2. Subpoenas and Retaliation (Section 8(a)(4)):

   • The General Counsel also alleged that the subpoenas violated Section 8(a)(4) of the Act, which prohibits retaliation against employees for participating in Board proceedings.

ALJ Findings:

1. Violation of Section 8(a)(1):

   • The ALJ applied the Guess? Inc., 339 NLRB 432 (2003) test, which establishes a three-part standard for determining whether employer-issued subpoenas are lawful:

     1. Relevance: The information sought by the subpoena must be relevant to the proceeding.

     2. Illegal Objective: The subpoena must not be issued for an illegal objective.

     3. Balancing of Interests: The employer's interest in obtaining the information must outweigh the employees' confidentiality rights under Section 7 of the NLRA.

   • In this case, the ALJ found that the subpoenas issued by Starbucks were unlawful because they sought information that was irrelevant to the 10(j) proceeding (Poor v. Starbucks) and included material that violated employees' Section 7 rights. For example, the subpoenas requested details about employees' union sentiments and union organizing activities, which the ALJ found unnecessary for the case and coercive.

   • The ALJ noted that even though Starbucks included a redaction instruction (which allowed some names to be omitted), the nature of the subpoenas still made them unlawful because they sought sensitive, protected information.

2. No Finding on Section 8(a)(4):

   • While the General Counsel argued that the subpoenas were also retaliatory under Section 8(a)(4), the ALJ did not address this claim because it would not alter the outcome of the case or the remedies provided.

Remedies:

The ALJ ordered Starbucks to:

1. Cease and Desist from issuing subpoenas that seek information related to employees' union activities.

2. Reimburse Employees: Starbucks was ordered to reimburse individuals who were subpoenaed for all legal costs incurred in defending against the unlawful subpoenas.

3. Posting Notices: Starbucks was required to post notices at its Great Neck store informing employees of their rights under the NLRA and the violations found in the case.

Significant Cases Cited:

1. Guess?, Inc., 339 NLRB 432 (2003): Established the three-part test for determining the legality of employer-issued subpoenas, focusing on relevance, illegal objective, and balancing interests.

2. Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983): Clarified that employers could not file lawsuits with retaliatory motives to interfere with employee rights under the NLRA.

3. NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967): Used to assess whether employer actions are inherently destructive to employee rights, particularly in cases involving discriminatory conduct.