How the Starbucks case at the Supreme Court could affect unions everywhere : NPR

When Starbucks barista Florentino Escobar first heard that the Supreme Court had taken up a case involving him and six of his co-workers from Memphis, Tenn., he was shocked.

“I was like, ‘Wait, the Supreme Court? Like we’re talking the U.S. Supreme Court?'” he says.

Escobar is one of the Memphis 7, a group of Starbucks baristas and shift supervisors who were fired by the company in February 2022, days after they announced their intent to unionize.

Starbucks said the employees had violated multiple company policies, including allowing a television crew into the store after hours. The workers believe they were fired for trying to organize a union.

On Tuesday, the Supreme Court will hear arguments — not about whether Starbucks illegally interfered with the union drive, but about whether a lower court erred in ordering Starbucks to reinstate Escobar and his co-workers while their firings were being investigated.

That order and the decision to grant it are at the heart of the case that the nine justices will hear.

Their ruling could have far-reaching implications for labor organizing efforts across the U.S. and across industries, from auto to retail to academia and beyond.

An important tool

The order, called a 10(j) injunction, is arguably the most powerful tool the National Labor Relations Board (NLRB) has to enforce the law. It’s also one of the few tools the agency has at its disposal.

Created by Congress in 1935, the NLRB is tasked with safeguarding workers’ rights to form unions and collectively seek better working conditions. However, Congress did not give the labor agency the power to fine or otherwise penalize companies for violating those rights.

Enter the 10(j) injunction.

When the NLRB believes unfair labor practices have occurred, it can ask a federal district court to temporarily halt whatever is going on while labor officials gather evidence, hold a hearing and rule on the case.

That’s what happened with this Starbucks case. After a preliminary investigation into the Memphis firings, the NLRB asked a federal court in Tennessee for an injunction. The court granted the request and ordered Starbucks to stop interfering with its employees’ union activities and temporarily reinstate the Memphis 7.

“To sort of stop the bleeding,” explains Sharon Block, a Harvard Law School professor and former NLRB board member.

That’s critical, Block says, because it can take months or even years for the NLRB to process cases. If the allegedly illegal behavior can’t be stopped while a case is under investigation, any remedy the labor board might issue as part of a final ruling could be meaningless.

“Life moves on,” Block says. “The organizing campaign may be dead by the time the board issues a decision, because everybody got freaked out by the lead union organizers getting fired.”

A legal fight ensues

Now in Memphis, the organizing campaign did not die. Union organizers pressed on, the union election was held and baristas voted 11 to 3 to join Workers United, the Starbucks employees union. With the injunction granted, the members of the Memphis 7 went back to work while the NLRB looked into their case.

But Starbucks, unhappy with the lower court’s decision to grant the injunction, asked the 6th U.S. Circuit Court of Appeals to block it. The court said no. The 6th Circuit agreed with the lower court 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.”

That’s when Starbucks took the case to the Supreme Court.

Two different standards

Starbucks is asking the Supreme Court to weigh in on whether some federal circuits — including the 6th Circuit — set too low a bar for granting injunctions.

Starbucks points to the onerous burden that injunctions can impose on employers, including forcing them to reinstate employees they fired for violations of company policy, and argues that injunctive relief should be granted only in extraordinary cases — and that there should be consistency in how it is granted.

Currently, federal courts use two different standards, or tests, when deciding whether to grant injunctions in cases involving labor organizing. Starbucks wants the Supreme Court to impose one standard across the courts — the one Starbucks considers more rigorous.

Bill Baker, an associate with the employment law firm Wigdor, doubts whether that would make much of a difference.

He studied 10(j) injunction petitions filed between 2011 and 2020 and found that those subjected to what is known as the “more relaxed” test were in fact denied at higher rates.

Moreover, he found that a majority of injunction petitions filed during that period were filed in just two federal circuits — the 2nd and the 9th — both of which already use the test Starbucks favors.

“Whatever the Supreme Court’s decision on this is, it won’t impact the decisions that these two circuits are making,” say Baker. “I’m sort of skeptical that in the real world, it would have an enormous impact on labor organizing.”

Potential for a strong signal to judges

Still, Harvard’s Block worries about the message that a Supreme Court ruling could send.

“If the court says that the standard that was used in this case was wrong, the court is going to be sending a very strong signal that judges should bring more scrutiny to these cases,” she says.

With employers like Starbucks mounting historically aggressive anti-union campaigns, Block says it’s the exact wrong time for the Supreme Court to be making it more difficult for federal labor officials to protect workers’ rights.

Watching from Memphis

In Memphis, Escobar says he’ll be following Tuesday’s arguments at the Supreme Court.

“My biggest fear is … the Supreme Court making it much harder for labor unions across the nation to follow in our footsteps,” he says.

Meanwhile, there has been some movement in the labor board’s investigation of the Memphis 7 case. In May 2023, more than a year after the original incident, an NLRB administrative law judge ruled that Starbucks did indeed violate the law when it terminated five of the seven workers, including Escobar, but not the other two.

As part of the NLRB process, that ruling is now awaiting review by a panel of board members, who could uphold it or modify it. Until that happens, the injunction remains in place. Today, five of the Memphis 7 still work for Starbucks, including one of the employees whose firing was deemed justified by the NLRB judge.