The Supreme Court appeared prepared to side with Starbucks in its request to curtail the National Labor Relations Board’s authority in determining whether fired union activists should get their jobs back in a case that was argued before the court Tuesday.
The justices heard Starbucks’s challenge to a federal district court’s 2022 decision to order Starbucks reinstate a group of seven baristas, who claimed Starbucks fired them from a Memphis coffeehouse in retaliation for union organizing.
The Seattle-based coffee giant says move to fire the Memphis workers was within the company’s rights under the law, because the workers violated company policy by inviting a TV news crew into the store after hours. The National Labor Relations Board (NLRB) agreed with the workers’ claim that Starbucks had illegally fired them.
Federal circuit courts apply different legal tests when determining whether to grant the NLRB’s request to force companies to rehire union organizers, or other actions like reopening closed stores or forcing companies to bargain with unions.
At the Supreme Court on Tuesday, the majority of the justices across the ideological spectrum appeared to agree with Starbucks that the NLRB wielded too much power in the Memphis case. That’s because some courts, including the one that gave the Memphis workers their jobs back, give more weight to the labor board’s findings during investigations than other courts.
“In all sorts of alphabet soup agencies, we don’t do this,” Justice Neil M. Gorsuch said. “So why is this particular statutory regime different than so many others?”
Other justices, including Sonia Sotomayor and Elena Kagan, appeared to agree that a more uniform test is necessary for federal courts that are considering labor board requests for relief.
Justice Ketanji Brown Jackson appeared more convinced by the NLRB’s argument that Congress gave it the authority to conduct investigations into employers that violate workers’ labor rights and those findings should be prioritized by federal courts.
“We’re in the context of a statute in which Congress has given the board the ability to determine the merits and — at least in the first instance — the ability to make the investigation,” Jackson said.
The case arrives before the Supreme Court as Starbucks appears to have taken a new, more cordial tone, agreeing to talks with the local union that could pave the way to the first labor contracts for stores that have already unionized. The company and the union resume bargaining this week, following a breakdown in talks months ago, with a goal of withdrawing ongoing litigation.
While the Supreme Court will examine the power of the NLRB around the workers’ reinstatement, experts fear a ruling against the NLRB could weaken labor organizing in other scenarios.
“This could have a substantial impact,” said James Cooney, a labor studies professor at Rutgers University. “If a stricter standard is adopted by the Supreme Court, it’ll be more difficult for the labor board to maintain the status quo for workers during an organizing drive. If there have been terminations of pro-union workers, those people are going to be out of work for years.”
Starbucks is arguing that the federal courts should use a stricter standard when it comes to going over the company’s head to reinstate fired workers. The company said the federal district court wrongly relied on “a minimal standard” in approving the request to reinstate the Memphis workers, rather than what it says is a tougher “four-factor” test used by courts in other regions of the country.
Kathleen McKinney, a regional director for the NLRB, has argued that the courts already apply a consistent formula for granting relief that has been adapted to labor law and considers the same factors across circuits.
A decision in the Starbucks case could make it tougher for the NLRB to obtain relief for labor activists ― which could have a chilling effect on union drives during a period of heightened union activism in the United States. The Supreme Court in recent years has consistently ruled in favor of employers and corporate interests, including in a 2023 decision to make unions more liable for financial losses attributable to work stoppages.
President Biden’s appointed leader of the NLRB, Jennifer Abruzzo, has earned a reputation for taking an aggressive approach to defending workers’ organizing rights. In 2022, she urged the agency’s staff to request relief from courts in “earliest phases of unlawful employer anti-union actions.”
More than 400 of Starbucks’s 9,600 company-operated U.S. stores have voted to unionize with Starbucks Workers United since the campaign went public in 2021.
Union officials expressed disappointment that Starbucks has forged ahead with its Supreme Court case.
Lynne Fox, president of Workers United, Starbucks workers’ parent union, told The Washington Post that “the day [Starbucks] committed to a new path should’ve been the day that they pulled back the case before SCOTUS.”
And the NLRB is facing other, more drastic legal challenges to its authority. SpaceX filed a lawsuit in a federal court in Texas this year claiming that the agency’s structure is “unconstitutional” after the NLRB issued a complaint against the space rocket company, alleging it illegally fired eight employees for criticizing the company’s leader, Elon Musk.
Starbucks, Amazon and Trader Joe’s have since echoed SpaceX’s argument in legal proceedings.
Abruzzo, the NLRB chief,, has slammed these corporate challenges. At a panel this month, she called the companies “deep-pocket, low-road employers” who are trying to divert the agency from its mission to defend workers’ rights “because they have the money to do so.”
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