Leslie v. Starbucks Corporation

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UNITED STATES DISTRICT COURT "7

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STERN DISTRICT □□

LINDA M. LESLIE, Regional DISTR

Director of the Third Region of

the National Labor Relations

Board for and on behalf of the

National Labor Relations Board,

Petitioner,

Vv.

22-CV-478 (JLS)

STARBUCKS CORPORATION,

Respondent.

DECISION AND ORDER

Petitioner Linda M. Leslie, Regional Director of the Third Region of the

National Labor Relations Board, seeks on behalf of the National Labor Relations

Board (“NLRB”) an injunction against Respondent Starbucks Corporation under

Section 10(j) of the National Labor Relations Act. See Dkt. 1. The Court initially

stayed this matter pending the completion of the hearing in the underlying NLRB

proceeding, which was scheduled to begin just a few weeks after Petitioner filed the

petition in this Court. See Dkt. 29.

On September 7, 2022, after Petitioner finished presenting its case-in-chief

and Respondent began presenting its case-in-chief in the NLRB hearing, the Court

lifted the stay and set deadlines for limited document discovery. See Dkt. 39.

Respondent served document subpoenas on current and former Starbucks

employees and the custodian of records for Workers United, the union that

represents Starbucks employees. Workers United, which agreed to accept service of

the subpoenas on behalf of Starbucks employees, moved to quash the subpoenas

issued to those employees (Dkt. 42) and its custodian of records (Dkt. 43).

Petitioner also moved to quash the subpoenas. Dkt. 44. Respondent opposed all

motions to quash. Dkt. 45; Dkt. 46; Dkt. 47. The Court granted, in part, and

denied, in part, the motions to quash and set deadlines for document production,

briefing on the petition, and a hearing at which the Court may allow the parties to

present testimony from certain witnesses. Dkt. 49.

In the interim, Workers United, the charging party in the NLRB proceeding,

moved to intervene or, alternatively, to participate as amicus curiae. Dkt. 32.

Respondent opposes both intervention and amicus participation by Workers United.

See Dkt. 37. Petitioner opposes Workers United’s intervention but does not oppose

amicus participation. See Dkt. 41. Workers United filed a reply in response to both

oppositions and in further support of its motion. Dkt. 50.

For the reasons below, the Court denies Workers United’s motion to

intervene and grants, in part, its motion to participate as amicus curiae.

DISCUSSION

I. Motion to Intervene

Workers United seeks both of-right and permissive intervention. Petitioner

and Respondent oppose both requests. Federal Rule of Civil Procedure 24 governs

both types of intervention.

A. Of-right Intervention

Rule 24(a) requires the Court to permit intervention, “[o]n timely motion,” by

anyone who:

(1) is given an unconditional right to intervene by a federal statute;

or (2) claims an interest relating to the property or transaction that

is the subject of the action, and is so situated that disposing of the

action may as a practical matter impair or impede the movant’s

ability to protect its interest, unless existing parties adequately

represent that interest.

Fed. R. Civ. P. 24(a).

Courts in the Second Circuit interpret Rule 24(a)(2)! to require intervention

when a movant: (1) files a timely motion; (2) asserts an interest related to the

transaction underlying the action; (8) is situated so that, without intervention, the

disposition of the action may impair or impede its ability to protect its interest; and

(4) has an interest that the parties do not adequately represent. United States v.

Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir. 1994).2 The movant “has the burden of

showing that representation may be inadequate,” and “must at least overcome the

presumption of adequate representation that arises when it has the same ultimate

objective as a party to the existing suit.” U.S. Postal Serv. v. Brennan, 79 F.2d 188,

191 (2d Cir. 1978).

1 Workers United does not claim to have “an unconditional right to intervene

[conferred] by federal statute” such that Rule 24(a)(1) would apply. See Dkt. 32-1.

2 Unless noted otherwise, the Court omits internal quotation marks and internal

citations from the citations in this decision and order.

Evidence or allegations “of collusion, adversity of interest, nonfeasance, or

incompetence may suffice to overcome the presumption of adequacy.” Butler,

Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 180 (2d Cir. 2001); see also United

States v. N.Y. City Hous. Auth., 326 F.R.D. 411, 417 (S.D.N.Y. 2018) (denying

intervention as of right where proposed intervenors did “not show[] that the

Government cannot adequately represent [their] interest,” and did “not suggest that

there [was] any evidence of collusion, incompetence, nonfeasance, or any other

badges of inadequacy on the part of the Government”). In a context similar to this

one—where the union and charging party in a parallel NLRB proceeding sought to

intervene in a Section 10G) proceeding—the court noted it was:

difficult . . . to find that the Board, possessed of expertise developed

over the years, and which independently determines that a petition

be filed with the court for a temporary injunction for the protection of

the applicant, will not adequately represent the interest involved.

Reynolds ex rel. N.L.R.B. v. Marlene Indus. Corp., 250 F. Supp. 722, 724 (S.D.N.Y.

1966); see also McKinney v. Starbucks Corp., No. 2:22-cv-02292-SHL-cge, Dkt. 45, at

6 (W.D. Tenn. May 19, 2022) (quoting Reynolds).

Workers United asserts that it satisfies all of the Rule 24(a)(2) criteria

because (1) its motion is timely, (2) it has a substantial interest in any relief

resulting from this action because it is the primary beneficiary of such relief and

because this proceeding arises from its charges, (3) it cannot protect its interests

because it has no right to commence its own Section 10(j) proceeding and, without

intervention, cannot fill any perceived gaps in Petitioner’s presentation, and (4) it

has a unique ability to present evidence and arguments about a nationwide chilling

effect and would seek broader remedies than Petitioner. See Dkt. 32-1, at 7-9.3

Petitioner and Respondent do not dispute that Workers United’s motion is timely,

but argue that Workers United cannot satisfy the other, interest-based factors for

of-right intervention under Rule 24(a)(2)—specifically, that Workers United has no

interest in this Section 10(j) proceeding that would be impaired absent intervention

or inadequately protected by Petitioner. See Dkt. 37, at 2-6; Dkt. 41, at 5-10.

Assuming that Workers United has an interest related to the events

underlying this action,‘ it has not demonstrated that the outcome of this proceeding

would impair such interest if it were not allowed to intervene. This involves

Petitioner’s request for a Section 10G) injunction, and any relief this Court is asked

to grant would be on an interim basis—until the NLRB decides the issues before it.

The Court cannot conclude that any temporary effect of any outcome of this

proceeding on Workers United impedes its ability to protect its interests.

Nor has Workers United shown that Petitioner does not adequately represent

its interest in this proceeding. Workers United essentially concedes that its

ultimate objective matches Petitioner’s. See Dkt. 32-1, at 8 (stating that “the

interests of Workers United and the Board are aligned in many respects”). It

therefore must overcome the presumption that Petitioner adequately represents its

3 Unless noted otherwise, page references to filings on this docket are to the

numbering that appears on the footer of each page—not the numbering

automatically generated by CM/ECF.

4 The Court is skeptical that Workers United has such an interest, for the reasons

argued by Petitioner and Respondent, but will assume such an interest exists for

purposes of this decision and order only.

interest. But Workers United does not offer evidence of—or even allege—collusion,

adverse interest, incompetence, or a similar infirmity that would hamper

Petitioner’s representation of its interests. Given the nationwide scope of the relief

Petitioner requests, the Court anticipates that Petitioner plans to address any

alleged nationwide chilling effect. See Dkt. 1, at 39-43. Any differences in the

scope of remedies Workers United might seek do not justify full participation equal

to a party. In sum, the Court agrees with the observation by other courts that it is

difficult to believe Petitioner will fail to represent adequately Workers United’s

interest here. See Reynolds, 250 F. Supp. at 724; McKinney, Dkt. 45, at 6.

For these reasons, the Court denies Workers United’s request to intervene

under Rule 24(a).

B. Permissive Intervention

Under Rule 24(b), the Court may permit anyone to intervene who timely

moves and “is given a conditional right to intervene by a federal statute” or “has a

claim or defense that shares with the main action a common question of law or

fact.” Fed. R. Civ. P. 24(b)(1). The Court “must consider whether the intervention

will unduly delay or prejudice the adjudication of the original parties’ rights.” Fed.

R. Civ. P. 24(b)(8).

Whether to permit intervention under Rule 24(b) is “wholly discretionary

with the trial court,” and that discretion “is very broad.” Brennan, 579 F.2d at 191,

192. When deciding whether to exercise discretion, courts consider the same factors

relevant to the of-right intervention analysis. See Penn-Star Ins. Co. v. McElhatton,

818 F. App’x 67, 70 (2d Cir. 2020). In addition, courts may consider “the nature and

extent of the intervenor[’s] interests” and whether the intervenor “will significantly

contribute to full development of the underlying factual issues in the suit and to the

just and equitable adjudication of the legal questions presented.” Brennan, 579

F.2d at 191-92.

As to permissive intervention, Workers United relies on its arguments for of-

right intervention and adds that it “does not seek to add complex new issues that

would unduly complicate [or delay] the proceedings.” See Dkt. 32-1, at 9-10.

Neither Petitioner nor Respondent argue otherwise, but both point out that

Workers United does not share a “claim” at issue in this Section 10(j) proceeding.

See Dkt. 37, at 4; Dkt. 41, at 6-7 & n.1.

The Court agrees. See Reynolds, 250 F. Supp. at 724 (denying permissive

intervention because Rule 24(b) “is expressly predicated on an applicant being

possessed of a claim,” and the union had no such claim in a Section 10()

proceeding); see also McKinney, Dkt. 45, at 6-7. That reason, alone, is enough to

deny Workers United permission to intervene under Rule 24(b). But the factors

discussed above also counsel against permissive intervention. See supra Section

I.A. Moreover, the supplementary evidence and relief Workers United seeks may

delay the Court’s resolution of this matter, which already involves numerous issues

and requests for relief. Workers United can achieve any enhancement of “the just

and equitable adjudication of the legal questions presented” through amicus

participation, as discussed below. See Brennan, 579 F.2d at 191-92.

The Court therefore denies Workers United’s request to intervene under Rule

24(b).

II. Motion to Participate as Amicus Curiae

As an alternative to intervention, Workers United seeks permission to

participate in this proceeding as amicus curiae, by offering evidence at the hearing

and participating in discovery. See Dkt. 32-1, at 10-12. Petitioner does not object

to this request. See Dkt. 41, at 10. Respondent objects to Workers United’s amicus

participation, arguing that such participation is not necessary or appropriate here,

and that amicus participation by Workers United would give Petitioner an unfair

briefing advantage—effectively, a sur-reply. See Dkt. 37, at 7-8.

Courts have “broad discretion to permit or deny an appearance as amicus

curiae.” Dunbar v. Landis Plastics, Inc., 996 F. Supp. 174, 179 (N.D.N.Y. 1998).

When deciding whether to allow amicus participation, courts consider whether the

participation “will aid .. . in the determination of the issues” presented—for

example, by “add[ing] a legal and factual perspective that is helpful to the court.”

Id. at 179-80. An amicus brief may serve that purpose when: (1) “a party is not

represented competently or is not represented at all”; (2) “the amicus has an

interest in some other case that may be affected by the decision in the present case”;

or (3) “the amicus has unique information or perspective that can help the court

beyond the held that the lawyers for the parties are able to provide.” Citizens

Against Casino Gambling in Erie Cnty. v. Kempthorne, 471 F. Supp. 2d 295, 311

(W.D.N.Y. 2007) (quoting Ryan v. Commodity Futures Trading Comm'n, 125 F.3d

1062, 1063 (7th Cir. 1997)).

The Court exercises its discretion here to allow Workers United to participate

as amicus curiae to the extent of submitting one brief. The Court credits Workers

United’s claim that it can provide perspective on the legal issues that may assist the

Court in resolving the petition, different from what the parties are able to provide.

But as discussed above, the Court is confident that Petitioner adequately represents

Workers United’s interest in this matter.

Because it recognizes the constraints of amicus participation—and because

Petitioner is equipped to present sufficient evidence to represent Workers United’s

interest and provide a complete record for the Court—the Court limits Workers

United’s participation to filing a brief sharing its perspective. See Citizens Against

Casino Gambling, 471 F. Supp. 2d at 311 (stating that an amicus participant “goes

beyond its proper role if the submission is used to present wholly new issues not

raised by the parties,” and that an amicus participant “has no control over the

litigation,” has “no right to institute any proceedings” in the litigation, and cannot

“file any pleadings or motions in the case”). Workers United’s amicus brief is due by

October 26, 2022.

CONCLUSION

For these reasons, the Court grants, in part, and denies, in part, Workers

United’s motion to intervene or, in the alternative, participate as amicus curiae

(Dkt. 32), as follows. Workers United may not intervene in this proceeding—under

either Federal Rule of Civil Procedure 24(a) or 24(b). Workers United may

participate as amicus curiae by filing a brief by October 26, 2022, but may not

present evidence or participate in oral arguments or any hearing.

SO ORDERED.

JOHN LAL. SINATRA, JR.

D STATES DIST

Dated: October 7, 2022

Buffalo, New York

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