10/04/2024: Starbucks CEO Violated NLRA By Inviting Employee to Quit

Teamsters breached the duty of fair representation.

Starbucks Corporation, 373 NLRB No. 123, 21-CA-294571 (Published Board Decision)

This NLRB decision affirms the Administrative Law Judge (ALJ)'s ruling that Starbucks violated Section 8(a)(1) of the National Labor Relations Act when interim CEO Howard Schultz invited an employee to quit in response to the employee raising union-related issues during a company "collaboration session."

Key aspects of the NLRB's legal analysis:

1. The Board applied the objective standard from Lush Cosmetics, LLC, 372 NLRB No. 54 (2023), which evaluates whether statements have a reasonable tendency to coerce employees in exercising their Section 7 rights.

2. The Board affirmed that inviting employees to quit in response to protected activities amounts to an implied threat of discharge.

3. The Board rejected Starbucks' argument to abandon the objective test in favor of a subjective standard based on Counterman v. Colorado, 600 U.S. 66 (2023).

4. The Board emphasized that Schultz's high-level position and the surrounding context, including ongoing unfair labor practice litigation, exacerbated the coercive nature of his statement.

The Board ordered Starbucks to cease and desist from the unlawful conduct and post notices at affected stores in the Long Beach, California area.

Significant cases cited:

1. Lush Cosmetics, LLC, 372 NLRB No. 54 (2023): Established the objective standard for evaluating allegedly coercive statements.

2. Chinese Daily News, 346 NLRB 906 (2006): Found that inviting an employee to resign if unhappy with their job is an implied threat of discharge.

3. Ozburn-Hessey Logistics, LLC, 359 NLRB 1025 (2013): Held that telling union supporters to seek other employment if unhappy is unlawful.

4. Aqua-Aston Hospitality, LLC, 365 NLRB 592 (2017): Noted that a high-level official's statements can exacerbate the coercive nature of threats.

International Brotherhood of Teamsters Local 959 a/w International Brotherhood of Teamsters, JD-60-24, 19-CB-311844 (ALJ Decision)

This ALJ decision addresses whether the International Brotherhood of Teamsters Local 959 breached its duty of fair representation and violated Section 8(b)(1)(A) of the National Labor Relations Act by arbitrarily reducing Stevenson Polintan's seniority when he returned to work at United Freight & Transport after serving as a union business agent.

Key findings and legal analysis:

1. Duty of Fair Representation Standard: The ALJ applied the standard from Vaca v. Sipes, 386 U.S. 171 (1967), which holds that a union breaches its duty of fair representation by engaging in conduct that is arbitrary, discriminatory, or in bad faith.

2. Arbitrary Action Analysis: The ALJ found the union's decision to reduce Polintan's seniority was arbitrary based on several factors:

• The collective bargaining agreement (CBA) allowed verbal agreements about retaining seniority, contrary to the union's claim that a written agreement was required.

• The CBA did not require another union official to approve the seniority agreement, contrary to the union's claim.

• The union's interpretation of the CBA was inconsistent, allowing automatic seniority retention for the first 6 months but not after.

• Comparator examples did not support the union's position.

• The union's investigation was perfunctory, failing to interview Polintan.

3. Contract Interpretation: The ALJ found the union's interpretation of the CBA unreasonable, noting that other CBA provisions explicitly required written agreements when necessary, while the relevant provision did not.

4. Pressure from Other Members: The ALJ noted that pressure from other bargaining unit members who opposed Polintan retaining seniority further demonstrated the arbitrariness of the union's decision.

The ALJ concluded that the union violated Section 8(b)(1)(A) by arbitrarily depriving Polintan of his contractual seniority rights. The ALJ ordered the union to restore Polintan's seniority and make him whole for any losses, including backpay with interest and compensation for tax consequences.

Key cases cited:

1. Vaca v. Sipes, 386 U.S. 171 (1967): Established the standard for breach of duty of fair representation.

2. Air Line Pilots Ass'n v. O'Neill, 499 U.S. 65 (1991): Held that a union's actions are arbitrary only if "so far outside a wide range of reasonableness as to be irrational."

3. Macy's, Inc., 371 NLRB No. 121 (2022): Found a union breached its duty of fair representation by arbitrarily interpreting a seniority provision.

4. United Government Security Officers of America International and its Local 129, 367 NLRB No. 5 (2018): Held a union breached its duty by not granting past seniority after a medical leave.

The Cliffs at Prospect Park LLC d/b/a The Cliffs at Gowanus LLC, 29-RC-332865 (Regional Election Decision)

This decision addresses objections filed by The Cliffs at Prospect Park LLC d/b/a The Cliffs at Gowanus (the Employer) to a representation election won by New York Metropolitan Area Joint Board Workers United, SEIU (the Union). The Regional Director overruled all of the Employer's objections and certified the Union as the exclusive bargaining representative.

Key points of the legal analysis:

1. The Regional Director applied the standard that the objecting party bears the burden of furnishing evidence that, if credited, would warrant setting aside the election.

2. For Objection 1 regarding alleged electioneering, the Director applied the test from Boston Insulated Wire & Cable Co., 259 NLRB 1118 (1982), which examines: a) Whether conduct occurred within or near the polling place b) The extent and nature of the alleged electioneering c) Whether it was conducted by a party or employees d) Whether it was in a designated no-electioneering area or contrary to Board agent instructions

3. The Director found the Employer's evidence insufficient to establish objectionable electioneering under Boston Insulated Wire, noting:

   • Lack of evidence the Union was responsible for the materials

   • No claim the materials were in a designated no-electioneering area

   • No evidence the materials remained up after objections were raised

4. For Objections 2 and 3 regarding alleged coercive meetings, the Director applied the Peerless Plywood rule prohibiting massed assembly speeches on company time within 24 hours of an election.

5. The Director found the Employer's evidence insufficient to establish a violation of Peerless Plywood, noting:

   • Lack of specific witness names

   • Insufficient evidence of a "massed assembly" speech

   • Prounion supervisor attendance at a meeting alone does not establish coercion

This decision demonstrates ab application of Board precedent on electioneering and coercive conduct objections, emphasizing the need for specific evidence to support objections and warrant a hearing.

Significant cases cited:

1. Boston Insulated Wire & Cable Co., 259 NLRB 1118 (1982) - Established test for evaluating electioneering conduct.

2. Peerless Plywood Company, 107 NLRB 427 (1953) - massed assembly speeches on company time within 24 hours of an election.

3. Northeast Iowa Telephone Company, 346 NLRB 465 (2006) - Held prounion supervisor attendance at union meetings alone does not establish coercion.

4. Professional Transportation, Inc., 370 NLRB No. 132 (2021) - Affirmed that hearings on objections are not to be used as "fishing expeditions" to gather evidence.