NLRB petitions federal courts for 10(j) injunctions to reinstate Starbucks baristas in Phoenix and Memphis

In a major policy shift, National Labor Relations Board General Counsel, Jennifer Abruzzo, formerly an attorney for the Communications Workers of America (“CWA”), issued a memorandum on February 1, 2022 announcing a new initiative to seek injunctions under Section 10(j) of the National Labor Relations Act in certain cases where workers have been subject to threats or other coercive conduct during a Union organizing campaign. The initiative aims to protect worker rights and deter statutory violations in the earliest phases of unlawful employer anti-union actions before threats or other coercion escalate into unlawful discharge or other adverse actions.

Section 10(j) of the National Labor Relations Act (“NLRA”) authorizes the National Labor Relations Board (“NLRB”) to seek injunctions against employers and unions in federal district courts to stop unfair labor practices where, due to the passage of time, the normal Board processes are likely to be inadequate to effectively remedy the alleged violations. According to Abruzzo, these injunctions are needed to timely protect employees’ Section 7 rights to exercise their free choice regarding engaging in union and protected concerted activities and to ensure that Board decisions will be meaningful.

The NLRB is utilizing this new 10(j) Injunction Remedy Against Starbucks

Shortly after setting forth its new policy, on April 22, 2022 NLRB’s Phoenix, Arizona Office sought a 10(j) injunction against Starbucks that would require it to reinstate three employees that were allegedly illegally discharged, forced out or placed on unpaid leave, during a union organizing campaign.

Continuing this trend on May 10, 2022, NLRB Region 15-New Orleans, Regional Director, Kathleen McKinney, petitioned the United States District Court for injunctive relief for seven former Starbucks employees in Memphis, Tennessee who were allegedly unlawfully fired for exercising their right to form a union. Section 10(j) of the NLRA authorizes the NLRB to seek injunctions against employers and unions in federal district courts to stop unfair labor practices where, due to the passage of time, the normal Board processes are likely to be inadequate to effectively remedy the alleged violations.

According to the NLRB’s 10(j) injunction petition, after learning about the organizing effort, Starbucks directed a wide variety of coercive measures at its employees, including disciplining the employee responsible for starting the campaign; more closely supervising its employees; closing the area of the store on days organizers had previously invited the public and customers to come to show support for the campaign; and removing all pro-union materials from the community bulletin board inside the store, including notes authored by customers expressing support for the employees and their campaign. Then, following increased media coverage and public support for the campaign, Starbucks terminated seven Union activists all on the same day, including five of the six members of the union organizing committee.

The Regional Director asked the Court to order Starbucks to cease and desist from committing unfair labor practices in violation of the Act, and to reinstate the seven former employees who were unlawfully terminated.

In its 10(j) injunction petition the NLRB is advocating for a very low burden of proof to obtain the extraordinary remedy of an injunction stating: “it is well settled that district courts in proceedings under Section 10(j) of the Act are not called upon to finally determine the merits of the unfair labor practice charges but should only evaluate evidence to determine whether the Regional Director has established a likelihood of success on the merits that the respondent has violated the Act. Indeed, it is settled that, in these preliminary proceedings, the courts should give the Regional Director’s position the ”benefit of the doubt,” and should accept the reasonable inference he draws if they are “within the range of rationality.” The NLRB further argued that there was no need to hold an evidentiary hearing, but rather that: “determinations can properly be based on evidence in the form of affidavits.”

The impact of the NLRB’s new policy cannot be underestimated. It clearly tilts the playing field in favor of Unions.

On a personal note, I was a trial attorney in Regional 21 of the NLRB in Los Angeles, from 1976-1980. During that time period, I was frequently called upon to run into Federal District Court to obtain a 10(l) injunction to enjoin unlawful secondary boycott picketing. However, during my entire time at the NLRB, I was never once assigned to obtain a 10(j) injunction. In fact, during that period Region 21 of the NLRB never sought any 10(j) injunctions. Moreover, during my entire 46 year career as a labor lawyer, I was not aware of the NLRB seeking any 10(j) injunctions, until recently.

In a typical Union organizing campaign, such as Starbucks, employers may at times fire employees who they suspect to be Union organizers. The Union then files an unfair labor practice charge alleging a violation of Section 8(a)(3) of the NLRA. If after investigating, the NLRB finds merit to the charge, it issues an Unfair Labor Practice Complaint. Thereafter, a hearing is held before an Administrative Law Judge, within a few months, who has the power to order the terminated employee to be reinstated with full back pay.

However, under the new NLRB policy, the NLRB doesn’t have to wait for an administrative hearing, but rather rushes into Federal Court to obtain a 10(j) injunction to have the terminated employee immediately reinstated. While the 10(j) statute has been on the books for years, it has hardly ever been used until now.

According to management side attorney, John Golper, Esq. of Ballard Rosenberg, Golper and Savitt: “In my 47 years of doing labor law, I have never seen 10(j) injunctions issued. It is totally unprecedented. The result will be to push employees who were on the edge to vote for the Union, when they see that the Union has the power to get their co-workers immediately reinstated.”

It is unclear how the Courts will rule on these cases. In the meantime, since August, more than 200 Starbucks locations have filed petitions to unionize under Workers United, an affiliate of Service Employees International Union. So far, 24 stores have voted to unionize, with only two locations so far voting against, but thus far none have signed a contract.

In response, Howard Schultz, the CEO of Starbucks, has vowed to raise employees’ wages at all its non-union stores.

How this epic battle is decided remains to be seen, but one thing is for sure – the NLRB’s 10(j) injunctions will have a major influence on the outcome.