Hunton Employment & Labor Perspectives

On January 31, 2024, an Administrative Law Judge (“ALJ”) for the National Labor Relations Board (the “NLRB” or the “Board”) found that Starbucks Corporation (“Starbucks”) violated federal labor law when certain of its managers asked employees whether they would be working their scheduled shifts or otherwise wanted to be scheduled for shifts during a planned strike that was communicated to management. Employers should take notice of the roadmap this decision provides to avoid similar pitfalls.

This case was based on conduct relating to striking activities in three Starbucks stores located in Seattle, Washington between April and July of 2022. At each of the three stores, employees sent the stores’ management strike notices explaining the reasons for the strikes, the strikes’ start and end dates, and the names of striking employees. Because management was aware of the strikes and needed to ensure each of the stores was appropriately staffed to operate during the strike dates, each of the stores’ managers reached out to employees individually, asking if they were planning to participate in their store’s strike, whether they would be reporting for their scheduled shift(s) occurring during strike dates, and whether they wanted additional hours or shifts during the strike dates. In a handful of these interactions, the managers indicated that they were asking these questions because they had received notice that their store would be on strike on the day(s) they were asking employees about. At least one of the managers testified at the hearing for this matter that the sole purpose for her call was asking what the employees’ plans were so she could adequately staff her store and make any necessary adjustments to the store’s operations.

In considering these facts, the ALJ explained that employer interrogation of employee strike plans is inherently coercive but noted that the Board has acknowledged an exception to this rule where an employer engages in such interrogation in order to determine whether it will have sufficient staffing to operate during a strike. The ALJ described the applicable standard to satisfy this exception, which requires that the employer (1) fully explains the purpose of its questioning, (2) assures employees that no reprisals will flow from their responses, and (3) does not otherwise create a coercive atmosphere.

The ALJ analyzed each of the allegedly unlawful communications under this standard and concluded that almost all of the managers had failed to fully explain the purposes of their questioning to employees and, further, that none of the managers gave the employees assurances that no reprisal would occur as a result of their answers. In so doing, the ALJ rejected Starbucks’ argument that the managers’ questioning was not coercive because they were asking employees about their strike intentions for the lawful purpose of determining staffing needs but did not engage in any threatening conduct. The ALJ emphasized that the Board’s promulgated standard is a safeguard necessary to “lessen the inherently coercive effect” of questioning employees about striking sentiment and activities.

As the frequency of the Board’s rulings against employers continues rising, it becomes increasingly important for employers to be cognizant of conduct which will likely result in similar findings. This ruling against Starbucks serves as a caution to employers that even well-meaning and seemingly innocuous questioning from supervisors may nonetheless result in findings of labor law violations if the supervisors do not fully explain the purposes of their questioning and assure employees that they will not be subject to reprisal for their answers. Further, it underscores the importance of retaining experienced counsel to provide training and educate management how to lawfully interact with employees in comparable situations to prevent similar violations from occurring.