Vice President, Labor Policy, U.S. Chamber of Commerce
March 01, 2023
A judge in the Federal District Court for the Eastern District of Michigan on February 23 rejected the National Labor Relations Board’s (NLRB) request for a nationwide cease-and-desist order against Starbucks, handing the company an important win against the overzealous agency’s ongoing case against it. Instead, the judge ruled that his order would be limited to one Starbucks store in Ann Arbor, MI, where an employee had been discharged for violating company policies.
The court’s action came one day after the same judge vacated a February 17 decision that had imposed a nationwide injunction. That injunction led to numerous headlines and dubious statements from the NLRB’s General Counsel and Detroit Regional Director touting their efforts to go after Starbucks. Given that the case is still working its way through the Board’s adjudication process, those statements appeared unusually biased to observers of labor policy, but given the court’s reversal, they seem to be somewhat outdated now too.
More importantly, the overly aggressive pursuit of a nationwide injunction underscores the perception that the NLRB has little interest in being a neutral arbiter of labor law and instead has adopted an activist stance when it comes to labor organizing. Employers in the agency’s crosshairs usually face expensive and often unnecessary litigation as a result.
At issue in the Ann Arbor store is the discharge of one Starbucks employee who was found to have violated a company policy that there be two employees present at a store location at any given time while the store is open, an allegation that the employee in question reportedly admitted. According to court records, moreover, the employee allegedly left a coworker alone because of a personal dispute with another coworker and deliberately failed to seek coverage by contacting a manager.
To hear the NLRB’s General Counsel tell the tale, however, Starbucks’ decision to terminate the employee for a violation of its store safety protocols warranted a salacious accusation that the company “continues to violate the law in egregious ways,” thus requiring a nationwide injunction. That accusation presupposes the outcome of numerous pending cases, including many frivolous unfair labor practice (ULP) charges brought by a union that is seeking to organize Starbucks locations across the country.
In the case of the absent employee, the NLRB accused the company of retaliating against the worker for supporting the union. Using that as a pretext, the NLRB’s Regional Director asked the court for the overly broad remedy of a nationwide injunction.
While the court initially acceded to that request, the judge subsequently thought better of it, citing “certain errors” in his initial ruling. He ultimately concluded that the NLRB “has not demonstrated that Starbucks has implemented a corporate-wide anti-union policy,” which is a prerequisite for a nationwide injunction. One might applaud this better-late-than-never outcome. But then, one might also question the NLRB General Counsel’s overly aggressive and one-sided enforcement efforts.