NLRB hearing against Starbucks begins with judge OKing secret recording of company meeting

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WBFO – National Labor Relations Board attorneys successfully argued to use a Buffalo Starbucks worker’s secret recording of a company meeting Monday, the first day of what could be months of proceedings against the coffee giant.

The hour-long audio recording, and potentially dozens of others, are set to be played when the hearing at Buffalo’s federal courthouse resumes Tuesday morning.

The hearing is the result of an NLRB complaint filed in May accusing Starbucks of over 200 labor law violations at all 21 Buffalo-area stores. The unfair labor practice charges include temporarily and permanently closing stores, firing union leaders, and sending in dozens of out-of-state company executives to monitor and intimidate employees.

The NLRB is asking Administrative Law Judge Michael Rosas to order Starbucks to reinstate seven fired Buffalo workers, reopen the Walden Galleria kiosk location, and allow the Camp Road location in Hamburg to begin bargaining. The NLRB alleges the vote against unionizing there was tainted by Starbucks’ actions.

But, as attorneys made clear in opening statements Monday, the hearing could have much broader implications, too. The NLRB is also asking for a nationwide cease-and-desist order on Starbucks’ alleged anti-union behavior.

“I think everyone in this case is speaking into history,” said Starbucks Workers United attorney Ian Hayes, adding that Starbucks’ alleged blatant violation of federal labor law throws into question what the National Labor Relations Act means in the 21st century.

“The significance of that question is why what happened here matters,” he said.

NLRB lays out allegations

Starbucks Workers United went public with its union campaign Aug, 23, sending then-Starbucks CEO Kevin Johnson a letter signed by about 50 Buffalo-area workers.

Johnson and Starbucks then used that letter as a “proverbial hit list” to target stores interested in unionizing, said NLRB general counsel Jessica Cacaccio during her opening statement.

Shortly after the letter was sent, Starbucks closed the kiosk location in the Galleria, turned the Walden Avenue and Anderson Road location in Cheektowaga into a training facility never before seen in Buffalo, and brought store and district managers from across the country to Buffalo. Then-Starbucks North America President Ross Ann Williams even swept the floor at an Orchard Park store, Cacaccio said.

Company executives also used headsets to listen to employees and started more strictly enforcing the dress code and rules about tardiness, Cacaccio alleged, as part of practices that she called “aggressive and unlawful.”

“Starbucks thought it was above the law,” she said.

Starbucks’ attorney, Jacqueline Phipps Polito, deferred her opening statement, but company spokesperson Reggie Borges said in an email that the company denies the NLRB’s claims and is prepared to present its case in court.

Much of Polito’s defense Monday was to question almost all of the NLRB’s exhibits, including a screenshot of a Starbucks Workers United tweet, and whether the day’s witness, Elmwood Avenue store barista Michelle Eisen, was the right person to authenticate them.

At one point, Polito questioned how Eisen knew a Starbucks district manager’s resignation letter produced in court was the same letter Eisen saw posted onto her store’s back fridge in September.

“Because it’s the same letter,” Eisen said.

“So it’s from recollection?” Polito asked.

“Yes,” Eisen replied.

Audio of ‘listening session’ to be played Tuesday

A little over two weeks after announcing their plans to unionize, Eisen and her Elmwood store co-workers were asked to attend a meeting with Williams and other executives Sept. 10 at the Courtyard by Marriott hotel in Cheektowaga. The company calls these meetings “listening sessions.”

Eisen decided to record the meeting on her Apple Watch.

“I wanted a recording of what was being said,” Eisen testified Monday.

Polito argued against the playing of the recording in court. She said there was no way to verify whether it had been edited or tampered with.

However, Rosas said he saw “no reason” to keep it out of court.

“I am going to overrule that objection and let it be played,” he said.

Nearing the end of the day, Rosas and the attorneys agreed to delay its airing until Tuesday.

Cacaccio said the NLRB has about 40 other recordings as well, and that it could take an entire week just to play them all. Attorneys then agreed to discuss streamlining the process.

Proceedings won’t wrap up anytime soon

The hearing will resume at 9 a.m. Tuesday, but attorneys said it will last until at least October. So a final decision by Rosas may not be handed down until 2023.

That’s why the NLRB also requested a 10(j) injunction last month. It allows the U.S. District Court to quickly order a temporary injunction against an employer or union before the administrative law hearing is concluded. The NLRB has prioritized seeking 10(j) injunctions under the Biden administration.

However, U.S. District Court Judge John Sinatra last month issued a stay order in NLRB’s 10(j) proceeding on Starbucks.

Monday’s hearing wasn’t the only development in the Starbucks unionization drive. The Starbucks in East Amherst’s Transit Commons became the eighth Buffalo-area store to unionize after a count by the NLRB. Workers there voted to unionize by an 11-1 tally.

There’s now about 150 unionized Starbucks stores nationwide.

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