*Violet Sovine
Starbucks Workers United[1] and the Starbucks Corporation announced in February 2024 that they would hold collective bargaining sessions after failing to begin negotiations for a little over three years.[2] Starbucks has previously shown extreme hostility to the unionization of its stores, causing Starbucks Workers United to file 700 unfair labor practice (ULP) charges over three years with the National Labor Relations Board (NLRB).[3] Averaging around 230 unfair labor practice charges per year, filings against Starbucks constituted one percent of all cases filed with the NLRB in 2023.[4] In 2023, the NLRB “also reported a 36 percent increase in its backlog of pending cases at the end of the year.”[5] One of the 700 charges related to seven union organizers terminated by a Starbucks location in Memphis, Tennessee.[6]
I. The Reinstatement of the Memphis Seven Prevented Company Intimidation.
Seven Starbucks employees engaged in union organizing at a store in Memphis, Tennessee—the “Memphis Seven” were fired by their Starbucks location after “they invited a news crew from a local television station to visit the store after hours.”[7] Preceding the firing, the Memphis Seven faced multiple disciplinary actions shortly after managers overheard the employees discussing potential union organizing.[8] Five of the store’s six-person union organizing committee, along with two other union organizers, were fired for violating inconsistently enforced company policies.[9] As a result, the NLRB charged the company with engaging “in unfair labor practices in violation of §§ 8(a)(1) and (3) of the NLRA.”[10] The NLRB sought a temporary injunction to reinstate the fired employees pending the outcome of their charges.[11] The purpose of temporary injunctions for reinstatement during union organizing campaigns is to restore affected workers’ status quo pending a decision or remedy by the NLRB.[12] The District Court for the Western District of Tennessee, by granting the injunction reinstating the workers, cited testimony of the “chilling impact of the terminations” on union organizing not only at the Memphis store, but also at Starbucks locations across the country.[13] The court determined such testimony provided “an adequate foundation” to warrant granting temporary injunctive relief.[14]
The NLRB has power to seek temporary injunctive relief through § 10(j) of the National Labor Relations Act,[15] and has justification to invoke 10(j) whenever terminations impair the NLRB’s ability to “facilitate peaceful management-labor negotiation.”[16] Courts consider the “chilling impacts” of employees’ fear of retaliatory firings to cause such an impairment.[17] Reinstatement becomes even more necessary when a newly certified union has yet to reach its initial collective bargaining agreement.[18]
III. How the Winter Test Puts the NLRB on the Back Foot in Fighting ULPs.
“A newly certified union that has yet to reach an initial collective bargaining agreement”[19] describes every unit[20] currently bargaining with Starbucks.[21] The fragile early stage of collective bargaining invokes a heightened necessity to avoid company intimidation.[22] Upon this heightened necessity to lessen the chilling effects of potential retaliatory firings, the district court found that injunctive relief was “just and proper,” and the facts of the case gave “reasonable cause to believe that unfair labor practices have occurred,” meeting the two-part test for granting injunctive relief established by the Sixth Circuit Court in Ahearn v. Jackson Hospital.[23]
The Supreme Court rejected the Ahearn two-part test and instead applied its four-part test for granting injunctive relief formulated in Winter v. Natural Resources Defense Council, Inc.[24] The Winter standard requires the following to grant injunctive relief: (1) likely success by the plaintiffs in their pending case on the merits; (2) irreparable harm in the absence of injunctive relief; (3) a balance of equities in favor of the injunction; and (4) that the injunction serves the public interest.[25] In his majority opinion, Justice Clarence Thomas acknowledged the “likely to succeed” standard is a far greater burden on the NLRB than the “reasonable cause” standard used by the lower court.[26] The same heightened “likely to succeed” standard applies to the irreparable harm element of the Winter test.[27]
III. Conclusion: What Does the Winter Test Mean for Starbucks Workers?
The NLRB’s General Counsel Jennifer Abruzzo pledged she would aggressively use the NLRB’s § 10(j) authority to stop ongoing unfair labor practices, reversing a severe trend of decline in § 10(j) injunctions under the Trump administration.[28] While Winter did not eliminate § 10(j) injunctions, the Supreme Court has now eliminated the Ahearn standard for injunctive relief during retaliatory firings and thus placed an important protection for union organizers out of reach.[29] Though Starbucks agreed to come to the bargaining table in February 2024, six months later Starbucks replaced its former CEO Laxman Narasimhan—who held the position when the tentative agreement to bargain was announced[30]—with former Chipotle CEO Brian Niccol.[31] Niccol, who led anti-union activities during his tenure at Chipotle,[32] may reverse his predecessor’s conciliatory trajectory. With Winter’s heightened standard for granting temporary injunctions to protect union organizers, the chilling effect on protected union organizing activity that the district court warned of may now intensify.[33] Starbucks now has more latitude to use employees’ economic precarity to its advantage through intimidation and retributive firings as it goes to the bargaining table.[34]
*Violet is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review, a member of the Royal Graham Shannonhouse II Honor Society, and the Omicron Delta Kappa Honor Society. Before coming to law school, Violet helped form the first Starbucks Workers United unit in the state of Maryland, acting as chairperson of its organizing committee for two years. She received her bachelor’s degree in Studio Art and Geography from the College of Charleston.
Photo Credit: elliotstoller, CC BY-SA 2.0 https://creativecommons.org/licenses/by-sa/2.0, via Wikimedia Commons
[1] Starbucks Workers United is a labor union representing over 480 Starbucks locations and 10,500 employees. Starbucks Workers United, https://sbworkersunited.org/ (last visited Aug. 31, 2024).
[2] Amelia Lucas, Starbucks Resumes Bargaining with Union After Two Sides Thaw Relationship, CNBC (Apr. 26, 2024, 1:34 PM), https://www.cnbc.com/2024/04/24/starbucks-resumes-bargaining-with-workers-united-union.html.
[3] Robert Iafolla, Punching In: Stabrucks’ Détent Lowers Heat in Labor Relations, Bloomberg Law (June 10, 2024, 5:00 AM), https://news.bloomberglaw.com/daily-labor-report/punching-in-starbucks-detente-lowers-heat-in-labor-relations-28.
[4] Adam Santucci et al., McNees Wallace & Nurick LLC, The National Labor Relations Board 2023 Year End Review, McNees Whitepaper 2 (2024), https://www.mcneeslaw.com/wp-content/uploads/2024/02/WhitePaper_NLRB-2024.pdf.
[5] 19,854 ULP charges were filed with the NLRB in 2023, up from 17,988 charges the previous year. Office of Public Affairs, Unfair Labor Practices Charges Filings Up 10%, Union Petitions Up 3% in Fiscal Year 2023, National Labor Relations Board (Oct. 13, 2023).
[6] McKinney v. Starbucks Corp., 2022 WL 5434206, slip op. at *1 (W.D. Tenn., Aug. 18, 2022), vacated, 144 S.Ct. 1570 (2024).
[7] Starbucks Corp. v. McKinney, 144 S.Ct. 1570, 1571 (2024).
[8] Id. at 3–4.
[9] McKinney at 7.
[10] Id. at 1.
[11] Id.
[12] Starbucks, 144 S.Ct. at 1574.
[13] McKinney, 2022 WL 5434206, at *19.
[14] Id.
[15] National Labor Relations Act § 10(j), 29 U.S.C.A. § 160(j).
[16] Lightner v. Dauman Pallet, 823 F.Supp. 249, 252–253 (D. N.J. 1992).
[17] Id.
[18] McKinney, 2022 WL 5434206, at *18 (quoting Lund v. Case Farms Processing, Inc., 794 F.Supp. 2d 809, 822 (N.D. Ohio 2011)).
[19] The union at issue in Lund was certified in June of 2007 and had not reached an initial collective bargaining agreement at the time the decision was handed down in June of 2011. Lund, 794 F.Supp. 2d at 812.
[20] Understanding the Difference Between a Union Local and A Unit, Union Coded, (Dec. 17, 2023) (“… [A] unit, also known as a bargaining unit, refers to a specific group of workers within a workplace or industry represented by a labor union.” “The union collectively represents the unit in negotiations with the employer for collective bargaining”).
[21] Lucas, supra note 2.
[22] McKinney, 2022 WL 5434206, at *18.
[23] Id. at *9 (citing Ahearn v. Jackson Hosp. Corp., 351 F.3d 226, 234 (6th Cir. 2003)).
[24] Starbucks, 144 S.Ct. at 1574 (quoting Winter v. Nat. Res. Def. Council, Inc., 129 S.Ct. 365 (2008)).
[25] Starbucks, 144 S.Ct. at 1576.
[26] Id. at 1578.
[27] Winter, 129 S.Ct. at 23.
[28] Robert Iafolla, Labor Board Goes to Federal Court: 10(j) Injunctions, Explained, Bloomberg Law (Nov. 29, 2022, 5:15 AM), https://news.bloomberglaw.com/daily-labor-report/labor-board-goes-to-federal-court-10j-injunctions-explained.
[29] Starbucks, 144 S.Ct. at 1578.
[30] See Lucas, supra note 2.
[31] Michael Sainato, Starbucks Names Chipotle Chief Brian Niccol as new CEO in Surprise Shake-Up, The Guardian (Aug. 13, 2024, 9:48 AM), https://www.theguardian.com/business/article/2024/aug/13/starbucks-new-ceo-brian-niccol-chipotle.
[32] Id.
[33] McKinney v. Starbucks Corp., 2022 WL 5434206, slip op. at *1 (W.D. Tenn., Aug. 18, 2022), vacated, 144 S.Ct. 1570 (2024).
[34] See generally McKinney, 2022 WL 5434206, at *19–20 (describing Starbucks employees’ fear that they would “become a target for Starbucks” or “be fired like the Memphis people were” in retaliation for union organizing activities). Cf. Starbucks Corp. v. McKinney, 144 S.Ct. 1570, 1581–82 (2024) (Jackson, J., concurring in part) (discussing the “ignominious history of abuse” with regard to judicial discretion in considering injunctive relief against organized labor).
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