McKinney v. Starbucks Corp.
| Docket Number | 22-5730 |
| Decision Date | 08 August 2023 |
| Parties | M. Kathleen McKinney, Regional Director of Region 15 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellee, v. Starbucks Corporation, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Argued: May 4, 2023
Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 2:22-cv-02292-Sheryl H Lipman, District Judge.
ARGUED:
Arthur T. Carter, LITTLER MENDELSON, P.C., Dallas, Texas, for Appellant.
Laurie Monahan Duggan, NATIONAL LABOR RELATIONS BOARD, Washington D.C., for Appellee.
ON BRIEF:
Arthur T. Carter, LITTLER MENDELSON, P.C., Dallas, Texas, A. John Harper III, LITTLER MENDELSON, P.C., Houston, Texas, for Appellant.
Laurie Monahan Duggan, Richard J. Lussier, Laura T. Vazquez NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Appellee.
Michael Schoenfeld, STANFORD FAGAN LLC, Atlanta, Georgia, Mary Joyce Carlson, WORKERS UNITED, Washington, D.C., Ryan E. Griffin, Daniel M. Rosenthal, Michael P. Ellement, JAMES & HOFFMAN PC, Washington, D.C., for Amicus Curiae.
Before: SUTTON, Chief Judge; BOGGS and READLER, Circuit Judges.
READLER, J. (pp. 14-28), delivered a separate concurring opinion.
OPINION
Following news coverage of a unionization effort at one of its stores in Memphis ("Memphis Store"), Starbucks fired seven partners[1] who worked there ("Memphis Seven"). Workers United ("Union") filed an action with the National Labor Relations Board ("Board"), charging that Starbucks's firing of the Memphis Seven, and other anti-union actions, violated section 8 of the National Labor Relations Act ("Act"). Meanwhile, M. Kathleen McKinney, a regional director of the Board, petitioned the district court for temporary injunctive relief pending completion of the Board's proceedings. The district court found reasonable cause to believe that Starbucks had violated the Act. It also concluded that, because of the chilling impact of the terminations on Union support, some of the requested interim relief, including temporary reinstatement of the Memphis Seven, was just and proper. For the following reasons, we affirm.
In early January 2022, Nikki Taylor, a shift supervisor at the Memphis Store, reached out to partners at a Starbucks in Buffalo, New York, to discuss their union-organizing efforts. The Buffalo partners directed her to the Union. After speaking with Union representatives, Taylor shared her interest in unionizing the Memphis Store with coworkers, including Makayla Abrams, Reaghan Hall, Nabretta Hardin, Beto Sanchez, and Kylie Throckmorton. These conversations took place at work, where managers could overhear them. Managers interjected, at least twice, to ask what the conversations were about.
On January 14, District Manager Cedric Morton issued Taylor two corrective-action forms without warning. The first corrective-action form stated that Taylor had engaged in aggressive, insubordinate behavior towards a store manager on December 29, 2021, and January 12, 2022. Taylor denied doing so. The second corrective-action form recorded a clothing violation-wearing leggings to work-which Taylor also denied. A store manager, Elizabeth Page, had told Taylor that "in practice, [managers] would have a conversation with a partner" before disciplining them. Taylor also testified that other Starbucks employees were not issued corrective-action forms for failing to comply with Starbucks's dress code.
Taylor continued her organizing efforts and, on January 17, facilitated a Zoom meeting between coworkers interested in forming a union-organizing committee-Hall, Hardin, Lakota McGlawn, Sanchez, Taylor, and Throckmorton-and Union representatives. During the meeting, the partners drafted a letter to Starbucks's then-CEO Kevin Johnson, announcing their intent to unionize.
On January 18, the letter to CEO Johnson was posted on social media. Hardin distributed union-authorization cards to coworkers. Although the store's schedule showed a full staff, Morton and Page decided to close the store early. Around 6 p.m., a news crew arrived at the Memphis Store, and Taylor opened the door for the crew to enter. Taylor, who was off duty at the time, did not have permission to invite the crew inside, but no partner expressed concern about the media's presence. The crew interviewed Florentino Escobar, Hardin, McGlawn, Sanchez, Taylor, and Throckmorton about their reasons for organizing and what they hoped to achieve and left the store around 6:20 p.m.
Before leaving, Hardin, Sanchez, Taylor, and Throckmorton went behind the counter. Sanchez opened the store's safe for McGlawn, the designated cash controller, because McGlawn lacked a personal access code. The partners testified that there was nothing unusual about their actions that night. They regularly came to the store-even while off duty-to check the work schedule or retrieve their personal belongings, went behind the counter after work to make a free drink (a perk of the job), and helped partners who were responsible for accessing the safe, but who had not received a personal code to do so.
Store management learned of the media event the next day, and Starbucks launched an investigation. Meanwhile, the Union and the Memphis Store organizing committee scheduled a sit-in campaign for January 21 to 23. Following this announcement, Morton, who had only periodically visited the Memphis Store, began to visit almost daily. Morton announced that the lobby would be closed and that the store would operate as a drive-thru-only location from January 20 to 23, because of short-staffing. The lobby remained closed on those days, despite the store being fully staffed. On January 22, Hall and Sanchez attempted to reopen the lobby. Morton arrived and was confused as to why the lobby had been reopened, as he "was under the assumption that it was supposed to stay closed no matter what." Only on January 24, when the store was actually short-staffed, did it return to normal operations.
According to Hall, managers also began to remove pro-union material pinned to the store's community bulletin board. Hall reported that managers eventually removed all material from the bulletin board and repositioned a condiment bar to make the board less noticeable. Sanchez testified that Morton told him that such material violated company policy.
On February 8, Starbucks fired five of the six organizing-committee members-Hardin, McGlawn, Sanchez, Taylor, and Throckmorton-and two other partners who had engaged in pro-union activity-Escobar and Emma Worrell. Starbucks claimed that it fired these employees for violating company policy during the January 18 media event, including by: (1) being in the store while off duty; (2) entering the back-of-house or counter area while off duty; (3) unlocking a locked door to allow an unauthorized person to enter while off duty; (4) activating the safe and handling cash while off duty; and (5) supervising while these offenses were being committed. Two partners who were present during the January 18 media event, Aiden Harris and Kimora Harris, were not fired: Kimora had not committed any apparent violations and Aiden's violation-failing to ring up a beverage-was not deemed a terminable offense.
Acknowledging that their actions violated company policy, Taylor and Hall testified that management rarely, if ever, enforced these violations. Sanchez also testified that, in the past, Page had directed him to share his personal safe-access code with other partners, so that they could open the safe and handle cash.
After the firings, only one organizing-committee member still worked at the Memphis Store. The store operated only as a drive-thru over the next couple of weeks. Even with the lobby closed, Morton, Page, and managers from other Starbucks locations came to the store every day. The visiting managers did not explain why they were suddenly stationed there. And they remained there after the store reopened the lobby.
On the morning shift, every partner other than Hall stopped wearing union pins to work. Ax Heiberg, a barista, testified that the firings caused him to stop wearing union pins because he felt that demonstrating open union support would make him a target. He eventually stopped discussing union matters with other partners unless he knew that they were pro-union and knew that no managers were around. Hall also testified that she did not feel comfortable discussing the organizing campaign with partners transferred from Page's previous store.
A senior Union organizer and a Union representative (who worked at a different Starbucks) both testified that the Memphis firings spread anxiety and fear among partners who were considering unionizing at other Starbucks locations. For example, partners at a store in Jackson, Tennessee, told one organizer that they were hesitant to unionize after what happened to the Memphis Seven, noting that Starbucks had posted a notice in the store detailing the discharges. A partner at a Starbucks in Florida said that his manager suggested that unionization would lead to a response from Starbucks similar to the one in Memphis.
On June 7, in an anonymous election, Memphis Store partners voted eleven-to-three in favor of joining the Union. The discharged partners remained involved in the bargaining process after the vote.
Between February and April 2022, the Union filed charges...
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