🗞️ NLRB Judge Dismisses All Retaliation Claims Against Starbucks in Memphis Union Case

The decision by ALJ Geoffrey Carter addresses allegations stemming from events at Starbucks' Poplar and Highland store (Store #8345) in Memphis, Tennessee, during 2022 and 2023. Workers United filed multiple charges alleging that Starbucks unlawfully targeted shift supervisor Reaghan Hall and other employees after they unionized and participated in NLRB proceedings.

The store became unionized on June 15, 2022, following a successful representation election. Hall was actively involved in the union campaign, serving on the organizing committee, and was in a committed relationship with lead organizer Connor Hovey.

The Allegations

The Acting General Counsel alleged that Starbucks violated federal labor law by:

1. Changing enforcement practices: Implementing stricter enforcement of its attendance and punctuality policy beginning September 24, 2022
2. Retaliatory discipline: Issuing three progressive disciplinary actions to Hall:
   • Documented coaching (September 24, 2022)
   • Written warning (January 3, 2023)
   • Final written warning (February 27, 2023)
3. Unlawful surveillance: Manager Erik Rocha allegedly watching employees' picketing from his car on November 16, 2022
4. Failure to bargain: Not notifying or bargaining with the union before allegedly changing policy enforcement

Hall's Union Activity and Board Participation

Hall's protected activities were extensive:

• Signed the public letter announcing the union campaign in January 2022
• Served on the organizing committee
• Wore union buttons and spoke with coworkers about organizing
• Participated in picket lines after the "Memphis 7" terminations in February 2022
• Testified in federal district court proceedings for a Section 10(j) temporary injunction on June 9-10, 2022
• Testified in an unfair labor practice trial on September 14, 2022
• Served on the union bargaining committee

The Disciplinary Actions

September 24, 2022 - Documented Coaching: Hall received discipline for arriving late on five occasions between July 30 and September 12, ranging from 6 to 22 minutes late. She suggested some late arrivals might have resulted from train delays or waiting for another employee to arrive (due to Starbucks' "two employee rule" requiring two people in the store at all times).

January 3, 2023 - Written Warning: Hall was disciplined for two additional late arrivals in October and November 2022 (9 and 6 minutes late respectively). Hall expressed frustration, saying her attendance was no longer an issue and couldn't recall why she was late those days.

February 27, 2023 - Final Written Warning: Hall arrived over an hour late on February 13, 2023, causing the store to open 40 minutes late. She explained her cell phone died overnight, so her alarm didn't go off. Hall conceded this incident warranted some discipline but was frustrated it was characterized as a final written warning.

Judge's Findings - No Unlawful Policy Change

ALJ Carter found the Acting General Counsel failed to prove Starbucks had an "established past practice" of lax enforcement that was then changed:

Variation Among Managers: The evidence showed enforcement of policies varied depending on which store manager was in charge. Between 2020 and 2023, the store had five different managers, each with different priorities.

Insufficient Evidence: The attendance records showed employees sometimes clocked in late without being disciplined, but didn't explain whether those late arrivals were excused (e.g., waiting for another employee due to the two-employee rule, or forgetting to clock in after arriving on time).

Witness Testimony Problems: Neither Hall nor former shift supervisor Taylor (the only witnesses who testified) had firsthand knowledge of Starbucks' disciplinary practices, so the judge gave their testimony about enforcement patterns "little weight."

Hall's Own Testimony: Hall described only one example of a "past practice" - having an informal conversation about attendance before formal discipline - which was different from what the Acting General Counsel argued.

"The Acting General Counsel did not demonstrate that Respondent had an established past practice for how strictly it enforced the attendance and punctuality policy at the Poplar and Highland store," the decision states.

Judge's Findings - No Discriminatory Motive

On the central question of whether Hall was disciplined because of her union activity and Board testimony, Judge Carter found no evidence of unlawful motivation:

No Animus: Most significantly, there was no evidence store manager Erik Rocha harbored any anti-union sentiment. Rocha had no involvement with earlier unfair labor practices at the store (including the "Memphis 7" terminations that occurred before he became manager).

Legitimate Business Reasons: Shortly after starting as store manager in late June/early July 2022, Rocha told shift supervisors he would emphasize five policies, including attendance. Critically, Hall herself had complained to Rocha multiple times about attendance problems, identifying four specific employees with time and attendance issues.

Actual Violations Occurred: Hall didn't dispute she was actually late on the dates specified in her disciplines. The judge found these were genuine attendance infractions.

Widespread Enforcement: Between September 2022 and July 2023, Rocha issued approximately 30 corrective actions to various employees (not just Hall) for attendance violations, including to all four employees Hall had identified as having problems.

Previous Managers Also Disciplined: Between December 2021 and July 2022, managers who preceded Rocha issued about seven corrective actions for attendance violations, showing enforcement wasn't unprecedented.

Timing Not Suspicious: While the documented coaching came 10 days after Hall testified in an unfair labor practice trial, the judge found this timing "simply a coincidence" given Rocha's lack of connection to those proceedings and legitimate reasons for enforcing the policy.

Surveillance Allegation Dismissed

Regarding the November 16, 2022 "March on the Boss" incident:

Employees entered the store, read grievances to Rocha, then left to picket on the sidewalk. When all other on-duty employees walked out, Rocha went to his car in the parking lot because the two-employee rule prohibited him from staying in the store alone.

The judge found Rocha's conduct was "not out of the ordinary" and not coercive:

• He was required by company policy to leave the store
• He sat in his car about 50 feet from the picketers
• He primarily looked at his cell phone while waiting for police and the district manager
• He only "occasionally glanced" at the picket line

"That limited conduct is well short of the 'continuous[] watching' that the Acting General Counsel alleged," Judge Carter wrote.

Failure to Bargain Claim Dismissed

Since the judge found no established past practice existed regarding attendance policy enforcement, he ruled Starbucks had no duty to notify or bargain with the union over how Rocha enforced the policy in 2022.

Legal Analysis

Wright Line Standard: The judge applied the established Wright Line framework, which requires the Acting General Counsel to first show that protected activity was a "motivating factor" in an adverse employment action by proving: (1) protected activity, (2) employer knowledge, and (3) anti-union animus.

If proven, the burden shifts to the employer to show it would have taken the same action absent the protected activity.

Affirmative Defense: Even assuming the Acting General Counsel made an initial showing, the judge found Starbucks proved it would have disciplined Hall anyway:

"Rocha's ensuing enforcement of the attendance and punctuality policy against Hall and other employees was the natural result of Rocha following through on one of his priorities and Hall's requests for action to address employees' attendance problems, and would have occurred even in the absence of Hall's protected activities."

Credibility and Evidence Issues

The judge declined to draw an adverse inference against Starbucks for not calling Rocha as a witness, noting Rocha no longer worked for the company at the time of trial and the "missing witness rule" generally doesn't apply to former employees not under the company's control.

The Acting General Counsel complained it was unable to elicit testimony about attendance records because Starbucks provided voluminous records late. However, the judge noted the Acting General Counsel had the opportunity to review documents and call witnesses during its case-in-chief but chose to rest instead.

Broader Context

This case arose during a wave of unionization at Starbucks stores nationwide in 2022-2023. The Memphis store was among the first to unionize, but as of the events in this case, no meaningful collective bargaining had occurred due to a nationwide dispute about whether bargaining should occur in person (as Starbucks proposed) or virtually (as the union proposed).

The decision references pending NLRB proceedings involving the "Memphis 7" terminations from February 2022, where another ALJ found Starbucks violated the Act by terminating five of seven employees. Those findings are currently on appeal to the Board.

Conclusion

Judge Carter concluded: "The Acting General Counsel did not prove that Respondent violated the Act as alleged in this case."

All complaint allegations were dismissed.

Case Numbers: 15–CA–304674, 15–CA–305620, 15–CA–304317, 15–CA–321864
Parties: Acting General Counsel represented by Aislyne Calianos and Jordan Williams; Respondent by Michael Gotzler, Michael Yellin, and Nina Neff; Charging Party by Michael Schoenfeld

Significance: This decision illustrates the challenges unions face in proving retaliation when:

• A new manager implements legitimate operational changes
• The employee actually committed the violations cited
• There's no evidence of anti-union animus from the decision-maker
• The employer can show widespread, non-discriminatory enforcement

Note: This decision may be appealed to the full National Labor Relations Board. If no exceptions are filed, the dismissal becomes final.