What factors must a court consider when the National Labor Relations Board requests an order requiring an employer to rehire a fired worker before an unfair labor practice proceeding is complete? ?
This is the central question the Supreme Court will consider during oral arguments in Starbucks v. McKinney on April 23, 2024. The global coffee shop chain asked the NLRB, the federal agency responsible for enforcing the right of U.S. workers to organize, to choose between two available standards when the agency asked a federal court to order the workers reinstated. has filed an objection, claiming that they hired someone more worker-friendly. At a store in Memphis, Tennessee, some people lost their jobs in 2022 amid a nationwide unionization campaign.
The Conversation US spoke with Texas A&M Law Professor Michael Z. Green about the background to the case and how the court's final decision, expected by the end of June, will affect the right to unionize in the United States. I asked him to explain whether it was possible.
What is this incident about?
Seven baristas who tried to unionize at a Starbucks store in Memphis, Tennessee, were fired in February 2022. Starbucks justified the firing by claiming that the employees, sometimes known as the “Memphis 7,” violated company policies by reopening stores. Non-employees, including television crews, were invited indoors after closing time.
In June of the same year, the store was one of more than 400 Starbucks locations to vote to join Workers United, an affiliate of the Service Employees International Union, starting in 2021.
The mass layoff complaint was pending before the NLRB, but Kathleen McKinney, the NLRB director for the region that includes Memphis, filed an injunction in federal district court forcing Starbucks to give back employment to the Memphis 7 while the lawsuit proceeded. asked for orders. She said Starbucks “must immediately stop this illegal activity so that all Starbucks employees can fully and freely exercise their labor rights.”
A judge ordered Starbucks to do so by August 2022, and baristas returned to staff in September.
Although the seven baristas got their jobs back and the union vote won, the company filed the lawsuit because it believed the court should not have ordered the company to reinstate the employees while the NLRB proceedings were still pending. An appeal was filed to the Supreme Court.
But the NLRB argued, and lower courts agreed, that the layoffs dampened further union activity at the stores after the election.
Nevertheless, Starbucks claims that firing the seven employees had no effect because the coffeehouse's employees still voted in favor of unionizing.
What is being challenged?
The justices will need to decide what approach federal courts should take when considering injunctions like this one.
Currently, five appellate courts, including the one where this case occurred, base their decisions on two-part hearings.
First, the court will determine whether there is “reasonable cause” to believe that an unfair labor practice has occurred. Second, determine whether it is “fair and appropriate” to grant an injunction.
Four other appellate courts use a four-part test.
First, the court asks whether an unfair labor practice lawsuit is likely to succeed on the merits in establishing that a labor violation occurred. Second, they are trying to determine whether the workers the NLRB seeks to protect will face irreparable harm without an injunction. Third, they ask whether those factors outweigh the difficulty an employer would face in complying with a court order after demonstrating the likelihood of success and irreparable harm. Fourth, we ask whether the issuance of an injunction is in the public interest.
Two other appellate courts use a hybrid test that appears to include elements of both tests. They ask whether it would be “fair and appropriate” to issue an injunction, taking into account the elements of the four-part test.
Starbucks said in a brief to the Supreme Court that requiring workers to return to work in these circumstances could cause “irreparable injury” and that this was an “exceptional remedy.” claims.
The NLRB said in its Supreme Court brief that Starbucks fired 80% of its Memphis store's union organizing committee because evidence showed the move had a chilling effect on the “only remaining union activists.” , said the injunction in this case was appropriate. According to the NLRB, this chilling effect “damaged the union movement in ways that subsequent board actions could not repair.”
A labor reporter who discussed the Starbucks unfair labor practice lawsuit involving the Memphis 7 found that an NLRB administrative law judge had found a violation of labor law. 48 out of 49.
AP Photo/Lindsay Wasson
What impact could the court's final decision on this case have?
While this incident may sound like just seven people employed at one coffee shop, the scope is broader than that.
The NLRB files hundreds of unfair labor practice charges against employers each year, but it typically does not go to court to force employees to be rehired. For example, in 2023, this type of injunction was sought only 17 times.
And seven of those initiatives involved Starbucks. Despite the small number of overall injunctions, the high number of unfair labor practice allegations, and the eventual finding of violations in 48 of 49 cases, indicate that injunctions were rarely used in this case. This may be substantiated.
If the Supreme Court rules in favor of Starbucks, the overall impact appears uncertain.
First, courts will choose one test over another without evidence to show whether an injunction is more likely to be granted. Additionally, the underlying unfair labor practice case was resolved as the worker got his job back and the workplace became unionized.
Additionally, Starbucks has agreed to enter into collective bargaining agreements with unions that continue to expand into the company's coffee shops.
Because the NLRB rarely seeks injunctions, the fact that this issue has gained enough importance for consideration by the Supreme Court is a result of its precious time and the limited number of cases it can consider each year. It seems strange considering that. But let's see what the majority of the court decides.
