Starbucks Corporation

373 NLRB No. 87 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Starbucks Corporation and Workers United, Southern Regional Joint Board, a/k/a Workers United a/w SEIU. Cases 10–CA–300921 and 10–CA–302699 August 20, 2024 ORDER1 BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND WILCOX The Respondent has requested special permission to ap- peal Administrative Law Judge Lisa Friedheim-Weis’ rul- ing granting the General Counsel’s request to present evi- dence relevant to a Section 10(j) proceeding during the ad- ministrative hearing. Because the Respondent failed to comply with the promptness requirement set forth in Sec- tion 102.26 of the Board’s Rules and Regulations, we deny the Respondent’s request. On July 24, 2023,2 at the outset of the hearing, the Gen- eral Counsel orally requested, and the judge agreed to per- mit, the introduction of Section 10(j) just and proper evi- dence into the record. The Respondent objected and moved for reconsideration of ruling, which the judge de- clined to reverse. The Respondent then stated its intent to file a request for special permission to appeal the July 24 ruling. It did not do so, however, until September 13, when the hearing was in recess until October 24. Section 102.26 of the Board’s Rules and Regulations requires “[r]equests to the Board for special permission to appeal from a ruling of . . . the Administrative Law Judge, together with the appeal from such ruling, [to] be filed in writing promptly[.]” In contravention of Section 102.26, the Respondent waited 7 weeks to file its special appeal request, by which point the General Counsel had 1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Respondent asserts that Members Prouty and Wilcox should recuse themselves, arguing that “no reasonable person with knowledge of their past professional activities, writings, and affiliations with organ- izations tied to the Charging Party in this case would be able to conclude that they could act impartially . . . given their significant conflicts of in- terest.” Member Prouty is not on this panel, rendering moot the Re- spondent’s assertion that he should be recused. Member Wilcox has de- termined, in consultation with the NLRB Designated Agency Ethics Of- ficial, that there is no basis to recuse herself from the adjudication of this case. 2 All dates are in 2023. 3 Our dissenting colleague challenges this conclusion based largely on the contention that there would be no prejudice to the parties here if the Board were to grant the Respondent’s request for special permission to appeal the judge’s ruling permitting the General Counsel to present evidence related to a Sec. 10(j) proceeding. While the Board has, at times, considered the prejudicial nature of a party’s timing delay in filing a request for special permission to appeal, the lack of prejudice resulting from such a filing delay is not dispositive under Sec. 102.26. That sec- tion of the Board’s Rules and Regulations is framed in terms of prompt- ness and does not expressly refer to prejudice. Compare Sec. 102.26 (“Requests to the Board for special permission to appeal from a ruling of presented 12 witnesses, 4 of whom had provided testi- mony relevant to a Section 10(j) proceeding. In this con- text, seven weeks cannot be characterized as “prompt.”3 The General Counsel has petitioned the federal district court, pursuant to Section 10(j), for appropriate injunctive relief pending final disposition of this case. It will be for the court to decide whether to accept or reject any just and proper evidence that was adduced during the hearing. Dated, Washington, D.C. August 20, 2024 ________________________________________ Lauren McFerran, Chairman ______________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER KAPLAN, dissenting. Today, my colleagues let stand the administrative law judge’s evidentiary ruling that permitted the General Counsel to introduce “just and proper” evidence,1 despite the fact that there was no pending proceeding in which that evidence would be relevant. Unlike my colleagues, I be- lieve that these circumstances warrant granting the Re- spondent’s request for special permission to appeal and granting that appeal on the merits. I also believe that this case raises important questions about the Board’s Section 10(j) practices. The complaint in this case alleges that the Respondent unlawfully suspended 11 employees on August 6, 2022, and unlawfully terminated 6 employees on September 2, . . . the Administrative Law Judge, together with the appeal from such ruling, must be filed in writing promptly”) with Sec. 102.48(c)(1) (“A motion for rehearing must specify the error alleged to require a hearing de novo and the prejudice to the movant from the error”) and Sec. 102.2(d)(1) (certain late-filed documents “may be filed within a reason- able time after the time prescribed by these Rules only upon good cause shown based on excusable neglect and when no undue prejudice would result”). Our dissenting colleague characterizes our decision here as finding that the appeal was not promptly filed simply because we say it was not. As we have previously observed, however, there was a substantial period of time and significant trial activity between the judge’s ruling on the General Counsel’s request and the Respondent’s filing of the appeal over the judge’s ruling. It is in these circumstances that we find that the Respondent’s delayed filing of the special appeal does not comport with the requirements of Sec. 102.26. As we deny the Respondent’s request for special permission to appeal on promptness grounds, we decline our dissenting colleague’s invitation to debate whether the General Counsel has promptly initiated Sec. 10(j) proceedings, whether in this case or in others, as a collateral issue, nor do we take any view on the correctness of the judge’s ruling to admit just-and-proper evidence. 1 “Just and proper” evidence includes testimony and other evidence regarding the chilling effect an alleged unfair labor practice may have had on union activity and support. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 2022. Over my dissenting vote, the Board authorized the General Counsel to seek Section 10(j) injunctive relief in federal district court against the Respondent on July 18, 20232—more than 11 months after the alleged unlawful conduct began. At the outset of the unfair labor practice hearing, which commenced on July 24, the administrative law judge granted the General Counsel’s oral request to introduce “just and proper” evidence during the unfair la- bor practice hearing. This evidence is generally only rel- evant to a 10(j) proceeding in federal district court, but at the time of the General Counsel’s request and at the time the Respondent filed its request for special permission to appeal, the General Counsel had yet not filed a 10(j) peti- tion with the district court. In fact, the General Counsel did not file the petition until December 1—nearly 5 months after receiving authorization and after the start of the hearing. As a result, at the time of the hearing, the “just and proper” evidence was neither relevant to the pro- ceeding before the administrative law judge nor relevant to any other proceeding.3 Taking the time to admit wholly irrelevant evidence based purely on the prospect that it might become relevant wastes the Board’s and the parties’ limited resources, unnecessarily burdens the administra- tive record, and unduly delays resolution of the unfair la- bor practice case. My colleagues sidestep this important issue by finding that the special appeal is untimely under Section 102.26 of the Board’s Rules and Regulations. They reason that “the Respondent waited seven weeks to file its special appeal request, by which point the General Counsel had pre- sented twelve witnesses, four of whom had provided tes- timony relevant to a Section 10(j) proceeding.” Critically, they cite no cases in support of their holding that 7 weeks is too late under these circumstances. Moreover, the Board’s analysis focuses less on the length of the delay and more on whether any prejudice has resulted. See, e.g., Lee Enterprises, Inc. d/b/a Arizona Daily Star, 2011 WL 5869215, slip op. at 1 fn.1 (Nov. 18, 2011) (finding special appeal filed 45 days after judge’s order was filed “promptly” because no prejudice shown); cf. Excel DPM of Arkansas, Inc., 324 NLRB 880, 880 fn. 1 (1997) (find- ing motion for summary judgment filed 5 months after an- swer to complaint was filed “promptly” under Sec. 102.24(b) because no prejudice shown). There would cer- tainly be no prejudice on the part of the Respondent if the Board granted the special appeal on the merits. Nor is the General Counsel prejudiced by the timing of the motion. After all, she could always ask the judge (or the Board) to revisit this ruling and readmit the stricken testimony from 2 All subsequent dates are in 2023 unless otherwise noted. 3 The judge could not have known when or even if the General Coun- sel would actually petition for such relief. 4 This case also raises serious resource allocation, jurisdictional, and due process questions about allowing Agency judges to admit “just and proper” evidence at all. However, I need not reach these questions in this case given my findings above. the four witnesses after such time as the General Counsel actually filed a 10(j) motion in the federal district court. For the foregoing reasons, I would grant the Respond- ent’s special appeal and find the judge abused her discre- tion by allowing wholly irrelevant testimony at the hear- ing.4 Setting aside the particular merits of this special appeal, I believe this case also raises another, more serious ques- tion about the promptness with which the General Counsel pursued Section 10(j) relief once the Board authorized her to do so. Section 10(j) authorizes the Board to seek in- junctive relief when, due to the passage of time, normal Board processes would be inadequate to effectively rem- edy the alleged violations. As the General Counsel herself has observed, Section 10(j) injunctions are one of the most important tools available to effectively enforce the Act. Effective enforcement requires that we timely protect employees' Section 7 right to exercise their free choice regarding en- gaging in union and protected concerted activities, in- cluding organizing and collective bargaining. Section 10(j) provides the tool to ensure that employees' rights will be adequately protected from remedial failure due to the passage of time. General Counsel Memorandum 21-05 (2021) (emphasis added). The passage of time also weighs heavily in the Fourth Circuit, where this case arises. Applying traditional equi- table principles, the courts in that circuit ask, among other questions, whether irreparable harm is likely in the ab- sence of an injunction. See. e.g., Muffley v. Spartan Min- ing Co., 570 F.3d 534, 541–543 (4th Cir. 2009). The more time that passes, the less likely the harm will be deemed “irreparable.” The initial charge in this case was filed on August 8, 2022.5 In that charge, the Union alleged, among other things, that the Respondent had unlawfully “suspended or effectively suspended Union leaders and supporters" and specifically requested “expedited injunctive relief under Section 10(j) of the Act to prevent irreparable destruction of employee rights.” The General Counsel, however, did not request authorization from the Board to pursue injunc- tive relief until July 11, 2023, more than 11 months after the Union’s first charge requesting 10(j) relief was filed. One week later, on July 18, 2023, the Board granted the General Counsel’s request to seek 10(j) injunctive relief. The General Counsel, however, failed to promptly act upon this authorization. Rather, the General Counsel 5 There appears to be a conflict between the date that the charge was actually filed between the Board's case-processing system, which lists August 6 as the date of filing, and the charge itself, which lists August 8 as the day of filing. Because the alleged unfair labor practices took place on August 6, I believe that the date written on the charge itself is more likely accurate. STARBUCKS CORP. 3 waited nearly 5 additional months before filing the peti- tion with the district court seeking injunctive relief with the court on December 4, 2023. As a result of the General Counsel’s inexplicable delay in this case, more than 15 months passed between the al- legedly unlawful conduct requiring extraordinary injunc- tive relief and the General Counsel’s petition for that re- lief. I disagreed with my colleagues’ decision to authorize the General Counsel to seek 10(j) injunctive relief in this case, due in part to the passage of time, but once the Board did so, the General Counsel’s failure to act on that author- ization in a timely manner not only lessened the likelihood of success before the courts, thereby undermining the crit- ical remedial purposes of injunctive relief, but it under- mined the Board’s credibility. Going forward, the Board may wish to keep closer tabs on the extent to which the General Counsel is timely requesting 10(j) injunctive re- lief where the Board has authorized her to take such ac- tion. Dated, Washington, D.C. August 20, 2024 ______________________________________ Marvin E. Kaplan, Member NATIONAL LABOR RELATIONS BOARD