In a federal court case over Starbucks’ alleged anti-union retaliation, the coffee giant is deploying a maneuver that labor experts say could have a chilling effect on workers’ organizing efforts and potentially set a disastrous precedent — hijacking the proceedings to dig up information on employees and intensify retaliation as part of its battle to crush a labor uprising in its stores.
That includes the Buffalo location where employees launched the Starbucks Workers United organizing campaign that has now spread nationwide — and where the company fired six workers in alleged retaliation for organizing.
Federal labor regulators are suing Starbucks on behalf of the union and workers over its conduct, but last October, a Trump-appointed judge in Buffalo, New York, ruled that as a defendant in the case, Starbucks is allowed to use subpoena power to obtain employee communications — even though the company can then use those communications to identify union sympathizers within its workforce.
In other words, instead of simply defending itself against allegations of illegal union-busting on a mass scale, the coffee giant is using the ensuing legal proceedings to double down. Labor officials and union scholars say the information the company is seeking to obtain can empower its executives and managers to target union organizers for pressure, intimidation, and retaliation.
“It would put all the employees at risk of being terminated, because they’re clearly terminating union supporters,” said Cathy Creighton, director of the Buffalo Co-Lab of Cornell University’s School of Industrial and Labor Relations. “It’ll be easy to figure out who the union supporters were and terminate them.”
After getting the green light on this legal strategy in Buffalo, Starbucks is now employing it elsewhere. On Monday, another federal judge overseeing a Long Island-based injunction case ruled in favor of granting several key subpoenas sought by Starbucks, although with a more restricted scope, in a separate case also stemming from alleged anti-union retaliation. These New York cases that remain in limbo are the last two of the five injunctions the National Labor Relations Board (NLRB) has so far filed against Starbucks.
At issue is the federal injunction process, an emergency legal maneuver that calls on a federal court to order labor rights offenders to provide immediate relief for workers. In August 2021, Jennifer Abruzzo, the proactive general counsel of the NLRB, which enforces U.S. labor law, issued a directive urging staff to aggressively seek federal injunctions against employers when the agency’s internal remedies are too slow to prevent anti-union retaliation.
Since Starbucks workers began to unionize, the coffee chain has racked up more than 500 alleged labor violations across 38 states, according to the NLRB. A year and a half later, not only has the NLRB’s strategy of seeking outside intervention failed so far to stop Starbucks’ union-busting efforts on a national scale, but in Buffalo, the coffee chain used the discovery process of an injunction case to ask for internal texts and emails between employees or union members in response to a cease-and-desist order filed against the company.
The NLRB is appealing the Buffalo ruling in the U.S. Court of Appeals for the Second Circuit, leaving the injunction case effectively paused in the lower court. Both the labor board and labor organizers contend that using subpoenas to ask for such information is itself a violation of the law that could chill unionization for workers wary of being targeted and harassed by their managers.
The NLRB called for the federal appeals court to force the lower court to protect employees’ confidential messages or to directly grant its original request for worker relief and reinstatement.
“Starbucks’ abusive litigation conduct has already significantly delayed justice in a proceeding designed by Congress to provide swift relief. Worse still, it has enlisted the power of a federal court to try to extract confidential information implicating important federally protected rights,” wrote Buffalo NLRB regional director Linda Leslie in her petition.
“I Would Never Have Dreamed It Possible”
In August 2021, Starbucks workers at one store in Buffalo filed the first union drive for what would become Starbucks Workers United, a union affiliate of the Service Employees International Union.
In the following months, more stores in the area followed suit, and the coffee chain flooded the region with a team of corporate executives and managers. Over the next few months, these anti-union operators allegedly surveilled and intimidated employees, and ultimately fired six in retaliation for organizing.
The understaffed NLRB office in the region took six months to investigate the union’s claims, but by June 2022, it had issued a far-reaching complaint that encompassed hundreds of alleged labor violations and filed an injunction to reinstate the workers who had been fired, as well as a seventh employee whom the NLRB alleges had been forced to quit.
The proposed injunction carries particular weight, because it contained a national cease-and-desist order, which union lawyers could use to prompt quick enforcement against future Starbucks labor violations in other cities by charging the company with contempt of a federal court.
In case proceedings, Starbucks’ lawyers asked for a subpoena that would force the union to give up a broad range of emails, texts, and other notes that would disclose employees’ union activities.
In the U.S. District Court for the Western District of New York, the union and NLRB argued these subpoenas violate the National Labor Relations Act (NLRA), which prevents an employer from “coercively” questioning workers about their views on the union, or what other employees have said to each other about it.
In September, Judge John Sinatra rejected the argument that he should have to consider so-called “union-employee privilege” if it bars evidence gathering on broad topics — a decision that shocked labor experts.
“It’s so abnormal that I would never have dreamed it possible — that essentially a judge would be ordering employees to turn over their internal union communications, which an employer may not ask for under the law,” Creighton told The Lever.
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In a blog post in On Labor, University of California, Berkeley, Law Professor Catherine Fisk said that the decision — and the results of NLRB’s subsequent appeal, filed on January 27 — risk turning injunction cases into “a hunting license for companies to harass unions and workers.”
Over the past several years, Sinatra, who was appointed by President Donald Trump in 2018, has made headlines for rulings that caused consternation for liberal and left-leaning politicians in New York state. In the fall, Sinatra overturned part of a concealed-carry law signed into law by New York Gov. Kathy Hochul (D), after the U.S. Supreme Court overturned a law that effectively banned people from carrying handguns statewide.
In 2021, Sinatra ruled to place Byron Brown on the ballot in the general election for mayor of Buffalo against Democratic socialist India Walton, even though Brown lost the Democratic primary to Walton and missed the deadline to get on the ballot with another party. The decision was later reversed in appellate court, and Brown subsequently won the race with a write-in campaign.
“Labor Law Was Not Built For Workers”
After the favorable outcome in Buffalo, Starbucks asked the court to allow similar subpoenas in an injunction case that the NLRB filed on behalf of the union and workers over alleged anti-union conduct on Long Island.
In May, the union lost its election there 6-5. But according to a suit filed by the NLRB in the U.S. District Court for the Eastern District of New York, several of the workers who voted against the union had been supportive before receiving threats from their managers, and one of the workers leading the union push had been fired in retaliation.
While Starbucks spokesperson Andrew Trull told The Lever that the worker was let go because of violation of company policy, the NLRB suit seeks to reinstate the employee and recognize the union at the store, despite the union loss.
In response, Starbucks requested in December that Magistrate Judge James Cho issue a subpoena for communications related to why employees changed their minds over the course of the union drive, among others.
After urging Starbucks and the NLRB to find a compromise on the matter, Cho ruled on Monday to allow key subpoenas seeking communications from any employees who changed their minds about the union and documents charting the number of employees who favored or disfavored union representation.
In a conference earlier this month, Cho first suggested he was open to granting some of Starbucks’ subpoenas, saying that he viewed his role as not being strictly bound by the NLRA protections but as balancing Section 7 rights “and [Starbucks] ability to be able to put on an appropriate defense.”
During that conference, Cho also told union lawyers that he may compel them to provide text and email communications between two employees who had voted against the union after initially showing support for it. The workers previously testified in the NLRB administrative hearing, so he argued that their identities have effectively been revealed.
The problem with doing so, argued a union lawyer in the conference, is that it’s possible that these communications refer to other employees’ views on unionization.
“There’s only 12 or 15 employees at issue here, and even if names are redacted, they’re going to be able to figure out exactly who’s being referenced,” noted Rachel Paster, an attorney with Cohen Weiss & Simon LLP representing Starbucks Workers United.
Starbucks lawyers in the Long Island case argue that restricting all NLRA-protected messages from becoming evidence violates the Federal Rules of Civil procedure. “We continue to contend that decisions made about the allegations should consider all available facts,” said Trull.
Labor scholars say this view subverts labor law. The fact that the NLRA isn’t enforced the same way in federal court as in NLRB proceedings shows a lack of familiarity with labor law among district court judges and court clerks, said Anne Marie Lofaso, a professor of labor law at West Virginia University.
“The whole point of the act is to create uniform national labor rights and policy,” said Lofaso. “That’s the purpose of it: so that we don’t have uneven enforcement of rights.”
After the conference earlier this month, the NLRB compromised with Starbucks’ lawyers by withdrawing its objection to several subpoenas in exchange to tightly restrict the time frame of the documents to the period of the union drive, and to issue a protective order that preserves employees’ anonymity “to the greatest extent possible.”
The law firm representing the union and workers continued to maintain that the subpoenas should be quashed in their entirety as a violation of worker confidentiality.
Cho only granted subpoenas that complied with the NLRB’s proposed restrictions on March 27, but he left it unresolved how the board plans to preserve employee confidentiality. The NLRB will now have to work this out in the coming weeks.
At the beginning of the month, the Buffalo case reached a milestone when an administrative judge from within the agency ruled that Starbucks had illegally fired the six workers and committed hundreds of other violations of labor law. That case, however, is likely to remain in limbo. Starbucks said it plans to appeal the decision to the five-member national labor board — a process that can take more than a year to conclude.
In the meantime, some of the pro-union workers who were fired in the Buffalo area have been waiting for relief for around a year. Many have had to get new jobs, which prevent them from being active in the ongoing push for a contract.
“There’s days where I’m like, ‘Yeah, we’re gonna fight this, we’re gonna win, I can do this, it's only a couple more months, this is gonna be fine,’” said Victoria Conklin, a barista who alleges she was fired in retaliation for union activities shortly after the NLRB filed its Buffalo complaint in June. “And then there’s days where I’m missing so much of my coworkers’ lives.”
Conklin said that Starbucks union drives have slowed in the Buffalo area, where around half the stores have unionized, but she thinks momentum may be picking up again. Since Buffalo has a unique role in the Starbucks Workers United campaign as its starting point, Casey Moore, another area barista-turned-spokesperson for the union, said that it’s frustrating to see the process start to founder there.
“Even with all of the stuff that the NLRB is doing, it’s still not enough,” said Moore. “I mean, labor law was not built for workers in this country.”