$COTU$
Why Was Ketanji Brown Jackson Made to Stand Alone for the Rights of Starbucks Workers?
Terri Gerstein and Jenny Hunter
Thu, June 13, 2024
This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. Alongside Amicus, we kicked things off this year by explaining How Originalism Ate the Law. The best way to support our work is by joining Slate Plus. (If you are already a member, consider a donation or merch!)
The Supreme Court handed down an 8–1 decision on Thursday that will help employers quash union-organizing campaigns. Given the storm of other cases dropping from the court this month, it’s important not to overlook the significance of this latest anti-union blow.
When workers try to form a union, it’s common for their employer to retaliate against or fire them in order to stop the union effort in its tracks. In Starbucks v. McKinney, the court made it harder for the government to quickly force an employer to rehire or stop retaliating against those workers. The decision, written by Justice Clarence Thomas over a partial concurrence and partial dissent by Justice Ketanji Brown Jackson, will impede the government’s ability to swiftly address the most severe cases of employer lawbreaking in union campaigns. It underscores the need for stronger labor laws and fully funded enforcement agencies.
For Supreme Court watchers, the surprising part of today’s ruling is that Justices Elena Kagan and Sonia Sotomayor joined Thomas’ majority decision. Before exploring that development, though, let’s consider what was at stake.
The case involves seven union supporters terminated by a Starbucks store in Memphis, Tennessee. Inspired by the Starbucks workers in Buffalo, New York, who formed the first union at the company in late 2021, employees in Memphis began organizing a union in early 2022. Starbucks responded by disciplining a leader of the organizing effort and ramping up managerial oversight of the store. Then, in February, the chain fired seven union activists, including five of the six members of the store’s organizing committee. The firings had the intended effect of spreading fear and frustrating the organizing effort in Memphis and other cities. The firings were part of a nationwide anti-union campaign by the corporation: Starbucks has committed more than 400 violations of labor law, according to federal authorities, including firing at least 59 union leaders and supporters.
Employers frequently fire or otherwise retaliate against workers during union campaigns; they’re charged with violating federal law in more than 40 percent of union election campaigns. These violations, which are called unfair labor practices, often have a stark multiplier effect: Reprisals against just one or two people send a strong message to co-workers, chilling them from exercising their rights and often nipping a campaign in the bud.
In a tiny group of cases, the National Labor Relations Board, the federal agency that enforces employees’ right to form unions, determines that a particularly egregious and impactful illegal act must be reversed immediately, before a broader overall case is resolved, in order to protect employees. In those cases, the NLRB can seek a temporary court order, called a 10(j) injunction, requiring the employer to rehire workers or otherwise fix the unfair labor practice.
Despite the frequency of employer retaliation, it is very rare for the NLRB to seek this kind of injunction. As Jackson’s partial dissent pointed out, of the approximately 20,000 unfair labor practice charges filed last year, the board pursued temporary injunctions in just 14 cases.
When the NLRB sought this relief in the Memphis Starbucks case, a district court agreed, ordering reinstatement of the workers and preventing the premature suffocation of the union campaign. Since then, hundreds of Starbucks stores have unionized across the country.
For the NLRB to protect workers’ rights, it must have the ability to seek such relief, even if the agency invokes it infrequently. If the board can’t stop severe violations until it’s too late, it would be merely a paper tiger. Although retaliation is illegal, employers often calculate that it’s worthwhile to break the law: The silencing effect of firing even one or two workers can crush a unionization effort.
Meanwhile, an employer’s potential consequences are minimal and won’t be imposed for months or years. The National Labor Relations Act contains zero monetary penalties. The available remedies include reinstatement, which can be long delayed and are sometimes no longer desired by former employees who have moved on; restitution, including back pay but minus any wages earned in the interim; and, most toothless of all in deterring violations, a notice posted by the employer promising to follow the law in the future.
The legal issue in the Starbucks case was about the test a trial court should apply in evaluating the board’s request for a temporary injunction. The NLRB and worker advocates supported a test taking into account the importance of these injunctions in protecting workers’ rights, as well as the fact that Congress assigned labor enforcement not to the courts but to the NLRB.
Instead, the court treated rare NLRB requests for temporary injunctions to reverse unfair labor practices the same as any generic case in which a private party seeks an injunction for any reason at all, making it much harder to get them. Thomas’ decision Thursday is characteristically contemptuous about the careful process the NLRB follows to determine when to seek those injunctions, calling it “an agency’s convenient litigating position” and the views of “in-house attorneys” rather than acknowledging that it is the result of a multistep procedure of consideration and approvals by experts and the NLRB itself.
Jackson, by contrast, rejected the all-or-nothing binary of the majority opinion. She argued for an approach that, while incorporating the traditional factors for granting injunctions, applies them in a way that acknowledges the context of this statutory structure and the NLRB’s expert function. She astutely noted that the majority’s opinion constitutes a power grab for the courts, writing, “I am loath to bless this aggrandizement of judicial power where Congress has so plainly limited the discretion of the courts, and where it so clearly intends for the expert agency it has created to make the primary determinations about both merits and process.”
Why didn’t Kagan and Sotomayor join Jackson’s more nuanced analysis? It’s hard to say for sure, but here are some hypotheses. Are they now choosing their battles with fellow justices, finding common cause when they can to preserve collegiality and their internal credibility? (The very small number of cases in which the NLRB seeks this relief each year might have made the damage seem somewhat limited.) Did they implicitly adopt a sympathy toward management that federal judges have often shown? Research indicates that this is especially true of judges who have worked as prosecutors or corporate lawyers. Is it possible that Kagan and Sotomayor were making a strategic move to try to get another justice’s vote in a different case? Finally, there’s a saying among lawyers that bad facts make bad law. The fired Starbucks workers allowed a TV crew into the store to interview them, a detail that seemed to unsettle the liberal justices at oral argument. Did their negative gut reaction to the facts have an outsize impact?
We don’t know. What we do know is that this decision will weaken the NLRB and harm workers.
In the end, the Starbucks ruling is unsurprising, since it involves two things the court’s far-right supermajority can’t stand: workers’ rights and a government agency that protects them. The majority’s pattern of ruling for corporate interests and disdain for administrative agencies made the outcome here—if not the acquiescence of two progressive justices—feel foreordained, but it’s terrible for workers nonetheless.
The United States is in a moment of worker activism unprecedented in recent history, at Starbucks, in Hollywood, and even in the previously seemingly impenetrable South, where the United Auto Workers resoundingly won a union election at a Chattanooga Volkswagen plant. But the challenges workers must face when they try to form a union are still too high, and Thursday’s decision creates one more excessive hurdle.
Supreme Court sides with Starbucks in blow to union movement
Caroline Anders
Thu, June 13, 2024
Insights from The New York Times, The Washington Post, and Politico
The News
The US Supreme Court decided in favor of Starbucks on Thursday in a case involving workers who were fired while trying to unionize a Starbucks store. The decision could make it harder for the US labor watchdog, the National Labor Relations Board, to intervene in labor organizing fights.
In this case, Starbucks said the workers were fired for violating company policy, but the NLRB successfully sought a court injunction to have them reinstated in their jobs.
The Supreme Court found that the legal test used to issue the injunction was too broad and inconsistent with other courts. Eight justices supported the majority opinion, and Justice Ketanji Brown Jackson wrote a separate opinion that concurred with the overall judgment but dissented on several points.
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Decision could encourage more legal challenges to National Labor Relations BoardSources: The New York Times, The Washington Post
Injunctions won by the NLRB are “a powerful deterrent against firing workers trying to unionize,” The New York Times wrote, but this ruling could give companies greater license to crack down on union efforts. That means the decision could open the door to an onslaught of challenges to the NLRB’s authority, attorney Christopher Foster said, particularly because the agency has taken a more aggressive stance in support of union efforts during the Biden administration. “This vindicates the strategy of [companies] going to the courts and not accepting the NLRB’s decision in any given matter,” Foster said.
Ruling could chill union efforts across the USSources: The Washington Post, NPR
The decision could have a “chilling effect” on labor organization efforts, legal experts said. Labor law challenges often take years to resolve, which may be discouraging for workers trying to organize; hence, injunctions to reinstate fired workers can be sought to address that concern. But this ruling will make it harder for the board to force a company to reinstate a worker, which experts said could dissuade other workers from organizing. However, the federal circuit courts that hear the most injunction petitions already used a legal test Starbucks preferred, a lawyer told NPR. That could mean the decision’s impact on organizing efforts more broadly isn’t so damaging as some fear, he said.
Decision aligned with broad legal movement to rein in federal powersSources: The Independent, Politico
This was one of several cases before the Court this year aimed at shifting power away from federal agencies, a long-time goal for the conservative legal movement. Conservatives want to rein in the broad authority held by federal regulators such as the NLRB, and the Court could further weaken those powers by striking down a precedent known as the Chevron deference in a future decision. Overturning the Chevron deference “would have the potential of being one of the most destabilizing decisions that this court has issued, if it chooses to go there,” said James Goodwin, an analyst at the Center for Progressive Reform, a leftwing think tank.
Supreme Court’s anti-union Starbucks ruling lands a blow to workers rights
Ariana Baio
THE INDEPENDENT UK
Updated Fri, June 14, 2024
Supreme Court’s anti-union Starbucks ruling lands a blow to workers rights
The Supreme Court ruled in favor of Starbucks in a union dispute on Thursday, significantly scaling back the National Labor Relations Board’s power to step in and protect workers from companies under fire for alleged union busting.
In a unanimous ruling, justices said the NLRB should have to satisfy a stricter, four-part test when asking a court to intervene on behalf of workers who allege they have been retaliated against for unionization efforts.
Members and supporters of Starbucks Workers United protest outside of a Starbucks store in Dupont Circle on November 16, 2023 in Washington, DC. (Getty Images)
The case was based on a dispute between Starbucks employees in Memphis and the coffeehouse giant. A group of employees attempted to unionize and faced retaliation after Starbucks claimed they broke company policy by reopening their store after closing time and inviting non-employees inside.
The termination of the seven workers had a somewhat chilling effect on employees who felt nervous about attempting to unionize at other locations.
Eventually, the union filed a lawsuit against Starbucks alleging unfair labor practices. The NLRB intervened, securing a preliminary injunction to reinstate the terminated employees as the legal case worked its way through the courts, after satisfying an initial test to show “reasonable cause” that employers engaged in unfair practices.
Seeking preliminary injunctions is a powerful tool used to stop employers from suppressing union activity. The one disputed in the Memphis 7 incident was the 12th the NLRB has sought against Starbucks in the last two years alone.
Starbucks disputed the intervention, claiming the NLRB should have used a four-part test that requires proof of “irreparable harm” and “likelihood of winning” to secure the preliminary injunction.
Previously, the NLRB used a two-part test to secure injunctions to stop employers from engaging in potentially harmful behavior while legal proceedings unfold. After Thursday’s ruling, the board must adhere to the stricter test.
“A preliminary injunction is an ‘extraordinary’ equitable remedy that is ‘never awarded as of right,’” Justice Clarence Thomas wrote in the majority opinion. He said that the four-part test, otherwise known as the Winter test, was “relevant” and had “equitable principles.”
Justice Ketanji Brown Jackson filed an opinion concurring in part but rejected part of the court’s decision, saying she “Cannot join the majority in ignoring the choices Congress has made in the NLRA about how courts should exercise their discretion in light of the National Labor Relations Board’s authority over labor disputes. Because the majority chooses the simplicity of unfettered judicial discretion over the nuances of Congress’s direction, I respectfully dissent in part.”
The opinion is unsurprising, during oral arguments in April, it seemed certain the court would side with Starbucks.
Thursday’s decision aligns with a larger legal movement aimed at shifting power away from federal agencies.
Starbucks Corp v McKinney was a labor law administrative case that had implications for unionization protections.
Supreme Court rules for Starbucks, limits power of judges to protect fired union organizers
Updated Fri, June 14, 2024
Supreme Court’s anti-union Starbucks ruling lands a blow to workers rights
The Supreme Court ruled in favor of Starbucks in a union dispute on Thursday, significantly scaling back the National Labor Relations Board’s power to step in and protect workers from companies under fire for alleged union busting.
In a unanimous ruling, justices said the NLRB should have to satisfy a stricter, four-part test when asking a court to intervene on behalf of workers who allege they have been retaliated against for unionization efforts.
Members and supporters of Starbucks Workers United protest outside of a Starbucks store in Dupont Circle on November 16, 2023 in Washington, DC. (Getty Images)
The case was based on a dispute between Starbucks employees in Memphis and the coffeehouse giant. A group of employees attempted to unionize and faced retaliation after Starbucks claimed they broke company policy by reopening their store after closing time and inviting non-employees inside.
The termination of the seven workers had a somewhat chilling effect on employees who felt nervous about attempting to unionize at other locations.
Eventually, the union filed a lawsuit against Starbucks alleging unfair labor practices. The NLRB intervened, securing a preliminary injunction to reinstate the terminated employees as the legal case worked its way through the courts, after satisfying an initial test to show “reasonable cause” that employers engaged in unfair practices.
Seeking preliminary injunctions is a powerful tool used to stop employers from suppressing union activity. The one disputed in the Memphis 7 incident was the 12th the NLRB has sought against Starbucks in the last two years alone.
Starbucks disputed the intervention, claiming the NLRB should have used a four-part test that requires proof of “irreparable harm” and “likelihood of winning” to secure the preliminary injunction.
Previously, the NLRB used a two-part test to secure injunctions to stop employers from engaging in potentially harmful behavior while legal proceedings unfold. After Thursday’s ruling, the board must adhere to the stricter test.
“A preliminary injunction is an ‘extraordinary’ equitable remedy that is ‘never awarded as of right,’” Justice Clarence Thomas wrote in the majority opinion. He said that the four-part test, otherwise known as the Winter test, was “relevant” and had “equitable principles.”
Justice Ketanji Brown Jackson filed an opinion concurring in part but rejected part of the court’s decision, saying she “Cannot join the majority in ignoring the choices Congress has made in the NLRA about how courts should exercise their discretion in light of the National Labor Relations Board’s authority over labor disputes. Because the majority chooses the simplicity of unfettered judicial discretion over the nuances of Congress’s direction, I respectfully dissent in part.”
The opinion is unsurprising, during oral arguments in April, it seemed certain the court would side with Starbucks.
Thursday’s decision aligns with a larger legal movement aimed at shifting power away from federal agencies.
Starbucks Corp v McKinney was a labor law administrative case that had implications for unionization protections.
Supreme Court rules for Starbucks, limits power of judges to protect fired union organizers
David G. Savage
Thu, June 13, 2024 at 8:42 AM MDT·4 min read
14
Employees, supporters and labor organizers hold signs as they strike at a Starbucks location in Los Angeles. (Brian van der Brug / Los Angeles Times)
The Supreme Court ruled for Starbucks on Thursday and limited the power of judges and the National Labor Relations Board to protect union organizers.
In a 9-0 decision, the court overturned a ruling by a federal judge in Tennessee who sided with the NLRB and ordered Starbucks to rehire the so-called "Memphis Seven."
In doing so, the justices set a higher legal standard to prevent judges from deferring to the labor board in pending disputes.
Justice Clarence Thomas said judges should follow the traditional rules before intervening to give a temporary victory for the workers and the NLRB.
"A preliminary injunction is an 'extraordinary' equitable remedy that is never awarded as of right," he said in Starbucks vs. McKinney.
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AFL-CIO president Liz Shuler denounced the decision and said the court had "sided with corporate power over Starbucks baristas today in a direct attack on the fundamental freedom to organize a union on the job. This decision sets a higher threshold for courts to reinstate workers who have been unfairly fired. In a system that is already stacked against workers, this will make it even harder for them to get back their jobs."
But the National Federation of Independent Business said it was pleased the justices ruled the NLRB "does not receive special treatment" in court. “Preliminary injunctions are not a benign, administrative procedure. They are a considerable intrusion on a business,” said Beth Milito, executive director of NFIB’s Small Business Legal Center.
Judges in different parts of the nation had followed differing approaches in these cases, and the court sided with those who said judges should be reluctant to intervene and issue a temporary injunction.
Justice Ketanji Brown Jackson dissented in part, saying she did not think judges were exercising too much power in these cases and should generally defer to the labor board.
"I am loath to bless this aggrandizement of judicial power where Congress has so plainly limited the discretion of the courts, and where it so clearly intends for the expert agency it has created to make the primary determinations about both merits and process," she wrote.
Starbucks has been aggressive in fighting against union organizers. The coffee company said it took the Memphis case to the high court seeking to "level the playing field" in these labor-management battles.
At issue was what the company called a union-friendly legal standard that allowed judges to intervene early and to rule against the employers.
"Getting an injunction is often the whole ballgame," said Washington attorney Lisa Blatt on behalf of the company in Starbucks vs. McKinney.
The NLRB says these temporary injunctions are needed to protect workers who were fired in violation of the labor laws. But the companies say they should not be forced to rehire employees who broke their work rules.
In February 2022, Starbucks fired seven baristas in Memphis who were seeking to organize a union. The company said the dismissals arose from "significant violations" of their safety and security policies. They said the employees had remained in the store after closing hours and invited local media to interview them.
Starbucks Workers United called this "union busting" and filed a complaint with the NLRB contending the workers were fired in retaliation for their organizing efforts.
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M. Kathleen McKinney, a regional director of the NLRB, petitioned a federal judge to issue an order protecting the workers while the board considered their complaint. U.S. District Judge Sheryl Lipman agreed there was "reasonable cause" to believe the workers had a valid claim, and she ordered Starbucks to rehire the seven employees.
Starbucks said the NLRB leans in favor of workers in these disputes and regularly wins orders from judges who force employers to rehire workers while their claims are pending for months or years before the labor board. Their lawyers argued that in other non-labor cases, judges rarely issue such temporary injunctions and do so only if they are convinced the suing parties are likely to win in the end.
Lynne Fox, president of the Workers United, said the unionizing efforts will not be deterred.
“Regardless of large corporations’ machinations at the Supreme Court, workers are continuing to organize. Just last week, workers at 20 Starbucks stores filed petitions to join Starbucks Workers United. And there are nearly 450 union Starbucks stores across the country. Workers’ momentum is unstoppable and they will not let the Supreme Court slow them down," he said.
Starbucks said in a statement that the ruling had upheld the principle of "consistent federal standards" across the country.
"Partners are the core of our business, and we are committed to providing everyone who wears the green apron a bridge to a better future. We will continue to focus on making progress toward our goal of reaching ratified contracts for represented stores this year," the company said.
This story originally appeared in Los Angeles Times.
US Supreme Court backs Starbucks over fired pro-union workers
REUTERS
Updated Thu, June 13, 2024
By Andrew Chung
(Reuters) -The U.S. Supreme Court sided on Thursday with Starbucks in the coffee chain's challenge to a judicial order to rehire seven Memphis employees fired as they sought to unionize in a ruling that could make it harder for courts to quickly halt labor practices contested as unfair under federal law.
The justices unanimously threw out a lower court's approval of an injunction sought by the U.S. National Labor Relations Board (NLRB) ordering Starbucks to reinstate the workers while the agency's in-house administrative case against the Seattle-based company proceeds.
The justices ruled that lower courts had used an improper legal standard - one that Starbucks argued was too lenient - to issue a preliminary injunction requested by the agency under a federal law called the National Labor Relations Act.
Such orders are intended as an interim tool to halt unfair labor practices while the NLRB resolves unfair labor complaints. Under that law's section 10(j), a court may grant an injunction if it is deemed "just and proper."
Starbucks had argued that the judge who granted the injunction should have used a stringent four-factor test in deciding to issue that order, similar to the standard used by some other courts and in non-labor legal disputes. This test includes an assessment of whether the side seeking relief would suffer irreparable harm and is likely to succeed on the merits of the case.
Conservative Justice Clarence Thomas authored Thursday's ruling in which the justices unanimously agreed to return the case to the lower court to apply the four-factor test. Liberal justice Ketanji Brown Jackson, in a partial dissent, broke with the other justices on how the lower court should apply part of that test.
Starbucks has contended that under a stricter standard, the case would have come out differently in the lower courts.
President Joe Biden's administration had defended the NLRB's actions in the case. During Supreme Court arguments in the case in April, a Justice Department lawyer said the NLRB seeks injunctions like the one issued against Starbucks in very few "cream of the crop" cases, last year requesting just seven even though it receives 20,000 unfair labor charges annually.
About 400 Starbucks locations in the United States have unionized, involving more than 10,000 employees. Both sides at times have accused the other of unlawful or improper conduct.
Hundreds of complaints have been filed with the NLRB accusing Starbucks of unlawful labor practices such as firing union supporters, spying on workers and closing stores during labor campaigns. Starbucks has denied wrongdoing and said it respects the right of workers to choose whether to unionize.
Both sides in February announced they had agreed to create a "framework" to guide organizing and collective bargaining and potentially settle scores of pending legal disputes.
Starbucks after the ruling reiterated its goal of reaching contracts with union-represented stores this year.
"Consistent federal standards are important in ensuring that employees know their rights and consistent labor practices are upheld no matter where in the country they work and live," the company said in a statement.
In 2022, workers at a Starbucks cafe on Poplar Avenue in Memphis became among the first in the company to unionize. Early in their efforts, they allowed a television news crew into the cafe after hours to talk about the union campaign. Starbucks fired seven workers present that evening, including several who belonged to the union organizing committee.
Despite the dismissals, employees there subsequently voted to join the Workers United union.
The union filed unfair labor charges with the NLRB over the firings and other discipline by managers. The NLRB sought an injunction, accusing Starbucks of unlawfully firing the workers for supporting the union drive and to send a message to other workers.
Lynne Fox, president of Workers United, criticized the Supreme Court's ruling.
"Working people have so few tools to protect and defend themselves when their employers break the law," Fox said. "That makes (Thursday's) ruling by the Supreme Court particularly egregious. It underscores how the economy is rigged against working people all the way up to the Supreme Court."
U.S. District Judge Sheryl Lipman granted the injunction in 2022, reinstating the workers in order to address the "chilling effect" of the dismissals on the unionization effort while the NLRB resolves the case. The Cincinnati, Ohio-based 6th U.S. Circuit Court of Appeals upheld the injunction in 2023.
(Reporting by Andrew Chung in New York and John Kruzel in Washington; Editing by Will Dunham)
Opinion
Who Will Protect Starbucks if Not the Supreme Court?
Talia Jane
Thu, June 13, 2024 at 11:43 AM MDT·3 min read
2
In a major blow to dastardly labor rights that cruelly curtail righteous corporate greed, the Supreme Court ruled in favor of Starbucks on Thursday. The ruling comes amid an ongoing battle between the heroic $25 billion corporation and the evil National Labor Relations Board’s order to rehire the “Memphis Seven,” a group of working class Starbucks employees who had the audacity to organize a union to support workers’ rights. The seven low wage workers were terminated by the java giant, prompting the NLRB to step in.
The case before the Supreme Court was brought by Starbucks seeking to overturn a lower court ruling that affirmed the NLRB’s order for Starbucks to rehire the Memphis Seven, and which issued an injunction against Starbucks for attempting to fight that rehiring. The Supreme Court’s ruling Thursday establishes a new precedent limiting the extent labor organizers and the NLRB can use the courts to enforce their rulings against companies that violate labor law or who unlawfully terminate workers in an effort to union-bust.
The NLRB successfully ordered Starbucks to rehire the “Memphis Seven” in September 2022. The NLRB alleged unfair labor practices for the firings, while Starbucks claimed the seven had engaged in “significant violations” of company policy: Starbucks claimed workers stayed in the store past closing time and allowed interviews by local media. Starbucks took its appeal to federal court and lost in August 2023 before appealing to the Supreme Court.
In response to the ruling, the Memphis Seven wrote, “It is a shame to see the lengths Starbucks is willing to go to destroy their image.” Starbucks Workers United, which represents unionized Starbucks employees, issued a statement on the ruling, calling it “particularly egregious” in light of how curtailed labor protections have become over the years.
SB Workers United statement Twitter screenshot: “Working people have so few tools to protect and defend themselves when their employers break the law. That makes today’s ruling by the Supreme Court particularly egregious. It underscores how the economy is rigged against working people all the way up to the Supreme Court. “Starbucks should have dropped this case the day it committed to chart a new path forward with its workers, instead of aligning itself with other giant corporations intent on stifling worker organizing. It’s incongruous to want to build a productive, positive relationship with workers and at the same time lead an attack on one of the few mechanisms they have to defend themselves against unscrupulous employers. “Regardless of large corporations’ machinations at the Supreme Court, workers are continuing to organize. Just last week, workers at 20 Starbucks stores filed petitions to join Starbucks Workers United. And there are nearly 450 union Starbucks stores across the country. Workers’ momentum is unstoppable and they will not let the Supreme Court down."More
Unionized Starbucks workers and those seeking to unionize have frequently alleged union-busting efforts by the coffee giant, including unlawfully reducing or changing worker-organizers’ schedules or closing locations in retaliation for successful organizing drives. Starbucks has received at least 446 unfair labor practice charges in the past year alone. The Strategic Organizing Center estimates Starbucks has spent $153 million on “anti-union activity,” and is liable for $87 million in denied wages, illegal firings, and store closings.
On Thursday, all nine Supreme Court justices either wholly or partially ruled in favor of Starbucks on the basis of impropriety for courts to intervene on matters that can be—and in this case were—resolved by the National Labor Relations Board. Conservative Justice Clarence Thomas wrote the majority decision and pointed to “traditional rules” of courts not stepping in, with liberal justice Ketanji Brown Jackson partially concurring. “I am loath to bless this aggrandizement of judicial power where Congress has so plainly limited the discretion of the courts, and where it so clearly intends for the expert agency it has created to make the primary determinations about both merits and process,” wrote Jackson. The ruling effectively neutralizes the NLRB’s ability to use the court system to enforce its rulings against combative companies, marking the loss of one of the few tools left to combat intensified corporate union-busting.
This article has been updated.
Supreme Court rules for Starbucks in union case over terminated employees
Zach Schonfeld
Thu, June 13, 2024
The Supreme Court on Thursday tossed a lower court’s ruling ordering Starbucks to reinstate seven Memphis-based employees terminated amid a unionization drive.
The decision makes it more difficult to immediately block alleged unfair labor practices as they are litigated in a sometimes years-long administrative process. Justice Clarence Thomas wrote the majority opinion on behalf of eight justices, while Justice Ketanji Brown Jackson partially dissented.
The case arose from the “Memphis Seven,” seven Starbucks employees who were terminated from the coffee giant in 2022 during a unionization effort. They had publicly posted a letter addressed to the company’s CEO and sat down in the store with a television news crew to discuss the organizing efforts.
Starbucks said it lawfully terminated the employees for breaking the company’s policies the day of the television interview, including by going behind the counter while off-duty and unlocking a door to allow an unauthorized person to enter the store.
Lower courts had split on the standard for when to issue the so-called “10(j) injunctions,” which can force companies to reinstate employees, keep facilities open and pause corporate policy changes as the National Labor Relations Board (NLRB) processes complaints against them.
The Supreme Court’s ruling rejects a more lenient test leveraged when requiring Starbucks to reinstate the seven employees, instead demanding courts use a more stringent, four-factor test applied in other contexts.
“Nothing in §10(j) displaces the presumption that those traditional principles govern,” Thomas wrote in his majority opinion. “We therefore conclude that district courts must use the traditional four-part test when evaluating the Board’s request for a preliminary injunction under §10(j).”
The NLRB only seeks the temporary injunctions in a handful of cases each year, but the ruling now raises the bar for the burden that must be cleared when going to court to seek such an order.
Jackson agreed the lower ruling should be wiped but dissented in part and said the majority was “ignoring the choices Congress has made” when establishing the NLRB.
“I am loath to bless this aggrandizement of judicial power where Congress has so plainly limited the discretion of the courts, and where it so clearly intends for the expert agency it has created to make the primary determinations about both merits and process,” Jackson wrote.
In a statement, the Starbucks union called the Supreme Court’s ruling “egregious.”
“Working people have so few tools to protect and defend themselves when their employers break the law. That makes today’s ruling by the Supreme Court particularly egregious. It underscores how the economy is rigged against working people all the way up to the Supreme Court,” said Lynne Fox, president of Workers United, which represents unionized Starbucks workers at hundreds of stores.
The NLRB declined to comment on the Supreme Court’s ruling, but in April, its general counsel said the differences between the tests “are terminology, not substantive” and that the board has been successful using either.
Starbucks said in a statement it would continue to work toward reaching a ratified contract amid the ruling.
“Partners are the core of our business, and we are committed to providing everyone who wears the green apron a bridge to a better future,” Starbucks said in a statement. “We will continue to focus making progress toward our goal of reaching ratified contracts for represented stores this year. Consistent federal standards are important in ensuring that employees know their rights and consistent labor practices are upheld no matter where in the country they work and live.”
Thu, June 13, 2024
The Supreme Court on Thursday tossed a lower court’s ruling ordering Starbucks to reinstate seven Memphis-based employees terminated amid a unionization drive.
The decision makes it more difficult to immediately block alleged unfair labor practices as they are litigated in a sometimes years-long administrative process. Justice Clarence Thomas wrote the majority opinion on behalf of eight justices, while Justice Ketanji Brown Jackson partially dissented.
The case arose from the “Memphis Seven,” seven Starbucks employees who were terminated from the coffee giant in 2022 during a unionization effort. They had publicly posted a letter addressed to the company’s CEO and sat down in the store with a television news crew to discuss the organizing efforts.
Starbucks said it lawfully terminated the employees for breaking the company’s policies the day of the television interview, including by going behind the counter while off-duty and unlocking a door to allow an unauthorized person to enter the store.
Lower courts had split on the standard for when to issue the so-called “10(j) injunctions,” which can force companies to reinstate employees, keep facilities open and pause corporate policy changes as the National Labor Relations Board (NLRB) processes complaints against them.
The Supreme Court’s ruling rejects a more lenient test leveraged when requiring Starbucks to reinstate the seven employees, instead demanding courts use a more stringent, four-factor test applied in other contexts.
“Nothing in §10(j) displaces the presumption that those traditional principles govern,” Thomas wrote in his majority opinion. “We therefore conclude that district courts must use the traditional four-part test when evaluating the Board’s request for a preliminary injunction under §10(j).”
The NLRB only seeks the temporary injunctions in a handful of cases each year, but the ruling now raises the bar for the burden that must be cleared when going to court to seek such an order.
Jackson agreed the lower ruling should be wiped but dissented in part and said the majority was “ignoring the choices Congress has made” when establishing the NLRB.
“I am loath to bless this aggrandizement of judicial power where Congress has so plainly limited the discretion of the courts, and where it so clearly intends for the expert agency it has created to make the primary determinations about both merits and process,” Jackson wrote.
In a statement, the Starbucks union called the Supreme Court’s ruling “egregious.”
“Working people have so few tools to protect and defend themselves when their employers break the law. That makes today’s ruling by the Supreme Court particularly egregious. It underscores how the economy is rigged against working people all the way up to the Supreme Court,” said Lynne Fox, president of Workers United, which represents unionized Starbucks workers at hundreds of stores.
The NLRB declined to comment on the Supreme Court’s ruling, but in April, its general counsel said the differences between the tests “are terminology, not substantive” and that the board has been successful using either.
Starbucks said in a statement it would continue to work toward reaching a ratified contract amid the ruling.
“Partners are the core of our business, and we are committed to providing everyone who wears the green apron a bridge to a better future,” Starbucks said in a statement. “We will continue to focus making progress toward our goal of reaching ratified contracts for represented stores this year. Consistent federal standards are important in ensuring that employees know their rights and consistent labor practices are upheld no matter where in the country they work and live.”
Supreme Court sides with Starbucks in case over fired union organizers — and other labor news
Max Nesterak
Fri, June 14, 2024
A Starbucks store at 5351 Lyndale Ave. in Minneapolis. Photo by Max Nesterak/Minnesota Reformer.
Take a seat in the Break Room, our weekly round-up of labor news in Minnesota and beyond. This week: Supreme Court sides with Starbucks; nursing home workers call off strike; problems with the frontline worker pay program; where the Windom workers are now; the loudest union critic of the Twin Cities; and workers at Kim’s to vote on unionizing.
Supreme Court sides with Starbucks
The U.S. Supreme Court sided with Starbucks in its challenge to a federal judge’s order to reinstate seven fired union activists at a Tennessee store.
The ruling means the federal government must meet a higher standard to win timely relief for workers while challenging alleged labor violations, making it harder for President Biden’s assertive National Labor Relations Board to use one of the most powerful tools it has to protect workers’ right to organize.
While the opinion was a loss for the NLRB, it doesn’t pose an existential threat to the agency like the arguments made by SpaceX, Trader Joe’s and Amazon in other active cases: that the board itself is unconstitutional.
The Starbucks case arose after the coffee giant fired seven workers in 2022 for allowing a TV crew in a Memphis store after hours for a news story about their union campaign. The NLRB alleged the firings were illegal retaliation and interfered with workers’ right to organize a union, while Starbucks said the workers violated company policy. The agency asked a judge for a preliminary injunction to reinstate the workers while the case over the firings worked its way through the NLRB’s administrative proceedings, which can sometimes take years.
A federal judge sided with the NLRB, ordering Starbucks to reinstate the workers, and an appeals court upheld the order.
But the Supreme Court decided that the standard used to award that injunctive relief on the side of workers was too lenient, and that the NLRB must meet the four-part standard used broadly in other cases: that a plaintiff “is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”
Eight justices signed onto Justice Clarence Thomas’s majority opinion, while Justice Ketanji Brown Jackson concurred overall but dissented on some points.
Starbucks applauded the ruling, writing in a statement, “Consistent federal standards are important in ensuring that employees know their rights and consistent labor practices are upheld no matter where in the country they work and live.”
Starbucks Workers United, which has organized more than 400 stores including nine in Minnesota, lamented the decision and said Starbucks should have dropped the case.
“Working people have so few tools to protect and defend themselves when their employers break the law. That makes today’s ruling by the Supreme Court particularly egregious,” Lynne Fox, president of Workers United, said in a statement. “It underscores how the economy is rigged against working people all the way up to the Supreme Court.”
Starbucks began negotiating with unionized workers on a framework for a first labor contract earlier this year, more than two years after workers unionized a Buffalo store in 2021 and after racking up more than 100 complaints from regional NLRB offices alleging unfair labor practices.
Nursing home workers call off strike
The union representing nearly 200 nursing home workers at Saint Therese in New Hope called off a five-day strike set to begin on Saturday after reaching a tentative deal that locks in $5 per hour raises workers received during the pandemic.
“We are proud that because we stuck together and were willing to strike, we won this tentative agreement,” Kpana Farwenel, a certified nursing assistant and member of the SEIU bargaining team, said in a statement.
The deal brings the average wage floor to $20, with senior certified nursing assistants making up to $25 in base pay. That’s among the highest in the Twin Cities metro, according to SEIU Healthcare Minnesota & Iowa, which represents the workers.
Workers at Saint Therese, along with hundreds of workers at 11 other nursing homes in the Twin Cities, walked off the job for 24 hours in March in the largest nursing home strike in recent state history. Since then, the 11 other facilities settled contracts with the two unions representing the workers, SEIU and UFCW.
Saint Therese announced last week it would sell the nursing home to Compass by Aug. 1, prompting the union to call foul since their contract requires at least 90 days notice of a sale.
In a statement, Saint Therese CEO Craig Abbott said he was pleased to come to a resolution that provides “comfort and assurances for our valued staff” during the ownership transition.
All nursing home workers — union and non-union — are on track to receive raises starting in 2026 as part of the first rules approved by Minnesota’s new labor standards board for nursing home workers. The board approved minimum wages, which must still clear some bureaucratic hurdles, of $23.49 per hour on average by 2027.
Frontline worker pay problems
Just 60% of the more than 1 million people who received $487.45 for working frontline jobs during the COVID-19 pandemic in Minnesota clearly deserved the bonuses, according to a state audit released on Tuesday.
The Office of the Legislative Auditor estimates 9% of recipients were not eligible for the payments, while for the rest, the auditors couldn’t independently verify they were eligible nurses, first responders, prison guards, sales clerks, janitors and other workers who couldn’t stay home during the pandemic.
The report faulted the Department of Labor and Industry, which oversaw the program, and the Department of Revenue for not adequately investigating clearly fraudulent applications. The auditors also criticized lawmakers for how they wrote the law, which included requirements that relied on workers to tell the truth and couldn’t be easily verified, like working in person and in close proximity to others.
“Remember, this program was set-up as a zero-sum game with a fixed amount of state funding — $500 million — to be divided equally among all eligible applicants,” Legislative Auditor Judy Randall told the Legislative Audit Commission on Tuesday. “The more applicants who were approved, the less each applicant received.”
DLI Commissioner Nicole Blissenbach pushed back forcefully on the findings, saying they were more of an indictment of legislators than her agency’s staff. She said in a statement that her agency prevented more than $36 million in payments to tens of thousands of applications deemed fraudulent or ineligible.
“The overarching theme of the findings is that the issue is with the program itself, not how it was implemented,” Blissenbach told the Legislative Audit Commission on Tuesday.
What happened to the Windom workers
The Star Tribune’s Christopher Vondracek and Elizabeth Flores traveled to the small city in central Mexico where many guest workers returned after the HyLife slaughterhouse in Windom shuttered and laid off all its 1,007 employees.
In a series of stories, Vondracek details how one plant’s closure upended workers’ dreams and sent them scrambling to find work across the United States or returning to a home with fewer economic opportunities and rampant cartel violence.
HyLife recruited workers from Salvatierra to work in its meatpacking plant on H-2B visas, promising over two years of work that paid six times as much as they could earn in Mexico. The work was grueling but hundreds of workers took the opportunity, with plans to build a home, send kids to college and support relatives.
After the plant announced its bankruptcy, government officials tried to find other opportunities for workers. Some ended up at processing plants in Michigan, oil fields in Texas and a dairy farm in Iowa.
The state Department of Labor and Industry is investigating HyLife, alleging the company stole wages from hundreds of visa workers.
Minneapolis and St. Paul’s loudest union leader critic
The Pioneer Press profiled Jason George, head of the International Union of Operating Engineers Local 49 and outspoken critic of the left-wing elected leaders in St. Paul and Minneapolis. George says the Twin Cities are increasingly run by “a government of paid activists, career political types.”
Trade unions like IUOE, which represents construction mechanics and heavy equipment operators, are predictably among the most conservative labor unions. Their focus is generally on increasing government infrastructure spending to fund high-paying construction jobs, rather than expanding regulations and social safety net programs like public health insurance.
For example, IUOE Local 49 and the carpenters’ union, the North Central States Regional Council of Carpenters, were staunchly opposed to St. Paul’s rent control ordinance, warning that the policy would stymie construction amid a housing shortage.
“We build things,” said George, in an interview with the Pioneer Press. “That’s what my union does. We knew rent control would have a devastating effect on the city.”
The two unions were part of a campaign last year called “Service St. Paul” to elect city leaders focused on basic services: police, fire, housing and roads. None of their endorsed candidates won, Pioneer Press’s Frederick Melo notes, in what was the latest in a string of political defeats.
Workers at Kim’s restaurant will vote on unionizing
The union campaign at chef Ann Kim’s Uptown Minneapolis restaurant Kim’s is headed to a vote by some 60 workers later this month. Workers, who are organizing with Unite Here Local 17, notified management of their intent to unionize last month and asked Kim to voluntarily recognize their union, the Star Tribune reported.
Kim declined, writing on Instagram, “I wholeheartedly believe we can come together as a Kim’s team without a union.”
Minneapolis Council Member Katie Cashman privately pressured Kim to voluntarily recognize the union in a voicemail, Axios reported.
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