Monday morning musings for workplace watchers.
Starbucks, Union Agreement|NLRB Chair Opposition
Robert Iafolla:
Starbucks has settled six cases since the company and Starbucks Workers United, which represents baristas at about 400 cafes, announced plans three months ago to discuss a “foundational framework” for securing labor contracts and resolving litigation.
The NLRB last month withdrew a petition asking a federal appeals court to enforce a judgment against Starbucks after the company said it would comply with the board’s order. The coffee chain has sought delays in a handful of ongoing cases in light of settlement talks, including a nationwide failure-to-bargain case.
Starbucks and the union have made some headway in their framework negotiations, with the parties saying late last month that they reached tentative agreements on issues like information sharing and just-cause job protections.
That more collaborative approach stands in contrast to the previous years of combative relations between the two parties. The company’s aggressive opposition to its workers unionizing generated approximately 700 unfair labor practice charges filed at the NLRB.
New charges have dwindled to a relative trickle following Starbucks and the union’s February joint announcement of framework negotiations.
Starbucks Workers United filed two ULP charges against the company—one of which it later withdrew—in the three months since the announcement, according to a Bloomberg Law review of the NLRB docket system. As a point of comparison, the union filed nearly 75 charges in the three months prior to the detente.
“The union may be saying, ‘We’ve got that six-month statute of limitations for ULP charges, let’s keep our powder dry and see how the negotiations go,’” said Mark Gaston Pearce, a former NLRB chair who heads Georgetown Law’s Workers Rights Institute.
Resolving ongoing cases takes more than Starbucks and the union agreeing to a deal, however, because of the complexities of the NLRB’s system for adjudicating unfair labor practice allegations.
Different authorities must approve settlements depending on where each individual case is in the life cycle of a case, which starts with a filed charge, then moves to a complaint if there’s merit to the allegations. Complaints are adjudicated before an administrative law judge, the board, and often a federal appeals court.
The six cases settled since the company-union announcement were early in the process, after complaints were issued but before an ALJ got jurisdiction over them.
Early cases are “low-hanging fruit” for resolution by settlement, partially because they haven’t required parties to expend many resources, Pearce said.
A spokesperson for Starbucks said that “discussions to resolve litigation are ongoing.”
“Our focus continues to be on training and supporting our managers to ensure respect of our partners’ rights to organize and on progressing negotiations towards ratified store contracts this year,” the company said.
NLRB spokesperson Kayla Blado declined to comment, and the union didn’t respond to requests for comment.
Parker Purifoy: A report dropped last week by a pro-business nonprofit organization blasted NLRB Chair Lauren McFerran for tolerating “racist and sexist language” from union organizers.
The report from the Institute For the American Worker comes as McFerran is gearing up for confirmation hearings after President
The 19-page I4AW memo addresses a legal gray area that has persistently caused confusion for employers. The NLRB has ruled in the past that federal labor law protects a union member from being fired for shouting racial slurs at a replacement worker, a behavior that arguably would violate Title VII of the 1964 Civil Rights Act.
The report accuses McFerran and the board of being “silent and complicit” in cases where union members racially or sexually harass managers or coworkers in situations where they are also engaging in legally protected organizing activity.
The report points to the board’s 2023 Lion Elastomers decision, which broadened protections for workers using profane language in heated discussions at the workplace, including on picket lines. The ruling overturned a Trump-era doctrine that made it easier for employers to fire union organizers, and reinstalled the previous Atlantic Steel precedent.
“Chair McFerran’s flawed interpretation of Section 7 exposes workers to discrimination by preventing employers from taking action and protecting victims of this harassment,” the report says. “The NLRB is denying job creators the ability to protect their employees and maintain an amicable, civil workplace. The rhetoric the board protects can create a culture of fear and destroy a respectful workplace.”
Pro-union scholars and attorneys see Lion Elastomers and Atlantic Steel as a step toward protecting employees’ free speech in the workplace. Charlotte Garden, a labor law professor at the University of Minnesota, wrote in a 2022 report for the Economic Policy Institute that the issue “illustrates how employers can weaponize workplace civility rules when they create upsetting situations and then punish workers for becoming upset.”
“Fraught workplace situations can lead to heightened emotions and intemperate comments,” Garden said.
At a conference hosted by the New York University School of Law last month, McFerran said that employers have “generally overstated” the perceived conflict between speech that might run afoul of anti-discrimination statutes but be protected under federal labor law.
The Lion Elastomers ruling doesn’t create a conflict because it still “prohibits particular types of discriminatory harassing behavior,” such as behavior that creates a “severe or pervasive work environment” that would trigger liability under Title VII, she said.
The NLRB has said it’s working on guidance with the US Equal Employment Opportunity Commission about how employers should respond in these types of situations. The guidance is currently sitting with the EEOC after Republican commissioners voted to bring it to a public hearing.
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