February 17, 2022
Earlier this month, Starbucks fired seven employees working at its Memphis Café. The union claims these workers were fired for being union leaders, Starbucks disagrees and claims they were fired for breaking store policies. So, what really happened and what can your business learn from this experience?
The Union and NLRB’s Positions are Extreme
Historically, employers have little to fear when they unlawfully terminate or otherwise discipline pro-union employees since the consequences are insignificant. Therefore, it should come as no surprise that an employer like Starbucks takes adverse actions against employees that are pro-union. Also not surprising, the union representing these workers has already filed an Unfair Labor Practice Charge (“ULP”) with the National Labor Relations Board (the “NLRB”) to have these employees reinstated with backpay.
The Facts (as we know them)
Starbucks fired seven pro-union supporters at its Memphis, Tennessee, store earlier this month, an action categorized by the union as a retaliatory move against the store’s organizers. These terminations received national attention and mark an escalation in the growing battle between the company and the union.
Starbucks asserts the firings were not retaliatory because the workers violated the store’s safety and security protocols. The workers opened the store outside of business hours and allowed non-employees in without permission. They even provided access to a local television news outlet who interviewed the union supporters within the store.
The Service Employees International Union (the “SEIU”), the union supporting the impacted workers, immediately filed an ULP charge accusing the company of firing the workers because they were union supporters. The charge has yet to be acted upon by the NLRB.
Does the Truth Matter in this Case?
Do employers fire union supporters “all the time” because the “cost” is so low? The unions say yes, and employers say no, but their answers aren’t important. What counts is what the newly appointed, pro-union NLRB, and the new highly pro-labor NLRB General Counsel, Jennifer Abruzzo, have to say. Abruzzo is not holding back. She believes whole heartedly, that the answer is yes, and she is out to change this!
Our Insights into How the System Works
There is no question that employers can drag out the ULP process. First, there is an administrative investigation. If merit is found, there is a trial. If the employer loses the trial, an appeal to the NLRB is possible and if that is lost, an appeal can be filed in Circuit Court. This process can take years.
But will most employers use this process just to buy time? It is very expensive and very distracting. We find most employers file these appeals because they believe they have not violated the law. But in most cases, it is true that time is on the employer’s side, so the delay is often an added benefit.
What Will Happen to the Starbucks Employees?
The ruling on this case will hinge on whether Starbucks regularly enforces the rules that it now accuses its employees of violating. Simply, does Starbucks have a history of firing employees who unlock the store after hours for the purpose of bringing in non-employees without first obtaining permission from their manager. If not, the union’s argument that the employees were fired because of their pro-union stance and that Starbucks was just using its policy as mere pretext should prevail. But as we said above, this is a long slow process.
That was Then, This is Now
With the election of President Biden, the self-proclaimed most pro-union President ever, and his appointment of Jennifer Abruzzo as his chief NLRB prosecutor, much of what we described above could soon change. More than any recent administration, President Biden believes justice delayed is justice denied, and he and his team are out to stop this.
Abruzzo knows there is an existing NLRB mechanism that can change all this without the need to change any rules. Her plan is to prioritize what is known as “10(j) injunctions,” which permits the NLRB’s General Counsel (Abruzzo) to go into federal court to try to obtain an injunction against an employer from committing a potential ULP while the allegation is being reviewed by the Board. If the General Counsel wins, the aggrieved employee is immediately returned to work while the case is fully resolved. This entire injunctive process would take a few weeks, rather than a few years.
If this approach becomes the new norm, it would be a game changer for pro-union activists and a real blow to Starbucks and other similarly situated employers. No longer could employers use ULP’s without impunity to cool off union activities at their stores. Even if this misuse of the ULP process isn’t happening, this will give the union the appearance of having great power, which will help them convince employees they should support the union.
How focused is Abruzzo on this initiative? She has already issued a memo calling these injunctions “one of the most important tools available” to the Board for enforcing the law.
With its ULP filing, the union in Memphis specifically request such a n injunction. While it seems fitting Abruzzo would utilize the 10(j) injunctive process in such a high-profile case, it is possible a 10(j) injunction is not warranted in this instance. The key issue will be if the NLRB can convince the court it is likely to win, which it may not be able to do in this case. However, it is only a matter of time before Abruzzo and the NLRB use this tool to send a clear message to employers and employees alike.
What makes matters worse for employers is Abruzzo issued another memo in which she calls upon the board to use all remedies within its power to correct terminations resulting from ULPs… “In cases involving unlawful firings, Regions should seek compensation for consequential damages, front pay, and liquidated backpay.” Clearly, it is not hard for employers to see where this is all headed.
Currently, more than 100 petitions for elections have been filed with the NLRB for a union election at a Starbucks store, with more petitions being filed at an alarming rate. The SEIU is using the firings which took place in Memphis as a rallying call for further stores to unionize. It is only a matter of time before this wave of union activity spreads to other QSRs. Now is the time to prepare your organization for the coming threat.
Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
