02/25/2025: A Bunch of Starbucks Unfair Labor Practices

Also an ALJ finds a failed meeting of the minds.

Starbucks Corporation, JD-16-25, 01-CA-302321 (ALJ Decision)

The case concerns multiple allegations that Starbucks Corporation violated Sections 8(a)(1), 8(a)(3), and 8(a)(5) of the National Labor Relations Act by engaging in coercive conduct, unlawfully disciplining and discharging employees, unilaterally changing terms and conditions of employment, and failing to provide requested information to the union.

Findings of Fact

Workers United, affiliated with SEIU, represented employees at Starbucks stores in Vernon, Connecticut, and sought to represent employees at a store in Branford, Connecticut. The union won the Vernon election in July 2022, but lost the Branford election in April 2023. The complaint alleged various unfair labor practices before and after these elections.

Coercive Conduct Under Section 8(a)(1)

The Administrative Law Judge (ALJ) found Starbucks engaged in coercive conduct by:

• Soliciting grievances with an implied promise to remedy them: After the election petition was filed, a Starbucks district manager solicited employee concerns and suggested management could address them, creating the appearance that unionization would hinder issue resolution.

• Threatening employees with the loss of raises and benefits if they unionized: Management falsely told employees that unionization would prevent them from receiving wage increases and tuition reimbursement.

• Discriminatorily removing pro-union materials from a community bulletin board: While Starbucks permitted other community notices, managers removed union-supportive messages, demonstrating viewpoint discrimination.

• Enforcing a non-solicitation policy in a discriminatory manner: Starbucks claimed that its solicitation policy prohibited pro-union postings while allowing non-union solicitations.

• Closing the store during a "sip-in" event to deter union activity: Starbucks managers closed the café area in response to a peaceful union demonstration, reinforcing an unlawful pattern of anti-union conduct.

• Threatening employees at the Branford store with loss of transportation benefits due to union activity: Management told employees they were ineligible for the company’s Lyft reimbursement program due to the union election petition, which constituted an unlawful threat.

The ALJ found these actions collectively interfered with employees' Section 7 rights.

Discriminatory Discipline and Discharge Under Sections 8(a)(3) and (1)

The ALJ applied the Wright Line test to determine whether Starbucks unlawfully disciplined or discharged employees in retaliation for union activity.

1. Stricter enforcement of attendance policies after the union election:

   • Before the election, Starbucks did not issue written warnings for attendance infractions at the Vernon store.

   • After the union’s victory, Starbucks issued multiple written warnings and suspensions for tardiness and absences.

   • The ALJ found this sudden change in enforcement was retaliatory and violated the Act.

2. Unlawful discharge of Barista Nogosek:

   • Nogosek was an active union supporter and designed a pro-union pin worn by employees.

   • In August 2022, Starbucks discharged Nogosek for allegedly leaving the store safe open overnight.

   • Evidence showed that other employees had committed similar infractions without discipline.

   • The ALJ concluded that Starbucks selectively enforced its policies to target a known union supporter, rendering the discharge unlawful.

3. Constructive termination of Barista Hallenbeck:

   • Hallenbeck, a shift supervisor, requested a schedule adjustment to accommodate EMT training.

   • Starbucks initially approved his availability but later pressured him to increase his work hours.

   • When he did not comply, Starbucks removed him from the schedule and later terminated his employment.

   • The ALJ found that Starbucks manipulated scheduling policies to remove a union supporter, violating the Act.

Failure to Bargain Under Section 8(a)(5)

The ALJ found Starbucks unlawfully refused to bargain over mandatory subjects of bargaining and failed to provide requested information to the union:

1. Unilateral changes to attendance policies:

   • Starbucks imposed stricter attendance enforcement at the unionized Vernon store without bargaining.

   • The ALJ ruled this was an unlawful unilateral change.

2. Failure to provide information regarding Hallenbeck’s demotion and Marrero’s discharge:

   • The union requested policies and personnel records related to shift supervisor requirements and discipline.

   • Starbucks refused, citing a Trump-era Board precedent (800 River Road Operating Co.) that exempted employers from bargaining over discipline before an initial contract.

   • The ALJ rejected Starbucks’ defense and found the refusals violated Section 8(a)(5).

Conclusion

The ALJ found that Starbucks engaged in a pattern of unlawful anti-union conduct, including coercive statements, discriminatory enforcement of policies, unlawful terminations, and failure to bargain. The decision orders reinstatement of affected employees, backpay, and cease-and-desist remedies.

Significant Cases Cited

1. Wright Line, 251 NLRB 1083 (1980) – Established the burden-shifting framework for determining whether an adverse employment action was motivated by anti-union animus.

2. Amazon.com Services LLC, 373 NLRB No. 136 (2024) – Reaffirmed that soliciting grievances during an organizing campaign creates a rebuttable presumption of an unlawful promise to remedy concerns.

3. Starbucks Corporation, 374 NLRB No. 10 (2024) – Held that statements about potential loss of benefits due to unionization could violate Section 8(a)(1).

4. Starbucks-Zeeb Road, 373 NLRB No. 44 (2024) – Found that Starbucks unlawfully discriminated against union postings on community bulletin boards.

5. Mid-Mountain Foods, Inc., 332 NLRB 229 (2000) – Confirmed that employers may not discriminatorily restrict bulletin board postings based on content.

6. 800 River Road Operating Co., LLC, 369 NLRB No. 109 (2020) – Allowed employers to discipline employees unilaterally before an initial contract

HSCGP, LLC D/B/a Trios Healthcare, JD(SF)-04-25, 19-CA-321939 (ALJ Decision)

The case concerns allegations that HSCGP, LLC d/b/a Trios Healthcare (Trios) violated Sections 8(a)(5) and (1), as well as Section 8(d) of the National Labor Relations Act by refusing to execute a memorandum of understanding (MOU) with Office and Professional Employees’ International Union Local 8 (the Union). The dispute centers on whether the parties had reached a complete and enforceable agreement regarding premium pay for certain hospital employees designated as leads, preceptors, and orienteers.

Findings of Fact

Trios operates an acute-care hospital in Kennewick, Washington, where the Union has jointly represented a bargaining unit with Service Employees International Union 1199NW (SEIU) since 2008. In 2022, Trios and the Union reached a collective bargaining agreement (CBA), but during negotiations, discussions arose about establishing premium pay for leads, preceptors, and orienteers. The final 2022 CBA did not include provisions for such premiums but contained an MOU stating that the parties would discuss the potential development of a program for those roles within the framework of the joint Labor/Management Committee (LMC), an advisory body.

In April 2023, the parties engaged in two meetings to discuss premium pay rates. The Union proposed specific pay rates—$3 per hour for leads, with separate rates for preceptors and orienteers. The discussions led to changes in the proposed language, including combining the preceptor and orienteer roles into a single category and excluding the new premium pay from the CBA’s "No Pyramiding" clause, which otherwise prevented stacking different premium pay rates.

However, key issues remained unresolved, particularly whether employees could simultaneously receive multiple premiums for working in overlapping roles (e.g., a lead who also acted as a preceptor). Trios’ representatives, including Human Resources Business Partner Christine Moreland, indicated that any final agreement required corporate approval.

After the meetings, the Union submitted a revised MOU on April 28, 2023, but Trios did not sign it. Instead, in July 2023, after the Union filed an unfair labor practice charge, Trios provided a significantly revised MOU, which removed the concept of orienteer pay, reserved the company’s right to determine whether to designate employees as leads or preceptors, and expressly prohibited an employee from receiving lead and preceptor pay simultaneously.

Legal Analysis

The administrative law judge (ALJ) applied the Heinz standard, which holds that once an agreement is reached, a party’s refusal to execute it violates Section 8(a)(5). However, the ALJ found that no enforceable agreement had been reached because the parties had not come to a “meeting of the minds” on all substantive terms.

1. Lack of Agreement on Material Terms – The ALJ determined that unresolved issues, particularly whether an employee could receive multiple premium payments, indicated that the parties had not reached a full agreement. The absence of an implementation date and the Union’s failure to announce an agreement to its members further suggested that negotiations were incomplete.

2. Role of the Labor/Management Committee – The ALJ noted that the meetings were held in a context more akin to advisory discussions rather than formal contract negotiations. The original MOU in the 2022 CBA merely obligated discussions, not a requirement to implement an agreement.

3. Absence of Clear Intent to Finalize the Agreement – The ALJ found that the meetings did not conclude with definitive acceptance of terms, nor did they follow the traditional bargaining process where parties signal agreement through mutual acknowledgments such as handshakes or statements of finality.

4. Burden of Proof Not Met by General Counsel – The ALJ concluded that the General Counsel failed to demonstrate that the Union and Trios had reached a complete agreement. While verbal agreements can be binding, the facts indicated continued negotiation rather than finalization.

Conclusion

The ALJ dismissed the complaint, finding that Trios did not violate the NLRA because no fully negotiated agreement had been reached.

Significant Cases Cited

• H.J. Heinz Co. v. NLRB, 311 U.S. 514 (1941) - Held that once parties reach an oral agreement, it is unlawful for one party to fail to reduce to writing and apply that agreement.

• H.K. Porter Co. v. NLRB, 397 U.S. 99 (1970) - Established that the Board lacks authority to compel a party to agree to any substantive contractual provision of a collective bargaining agreement.

• Intermountain Rural Electric Assn., 309 NLRB 1189 (1992) - Held that evidence that parties "stood pat" in disagreement over at least one substantial contract provision indicates they never reached a complete agreement.

• Hempstead Park Nursing Home, 341 NLRB 321 (2004) - Established that the General Counsel bears the burden of showing the parties have reached the requisite meeting of the minds.

• Windward Teachers Assn., 346 NLRB 1148 (2006) - Noted that a "hallmark indication" of a binding contract is the conclusion of negotiations with handshakes and mutual expressions of satisfaction.

American Backflow & Fire Prevention, Inc., JD-15-25, 13-CA-285856 (ALJ Decision)

This decision by Administrative Law Judge G. Rebekah Ramirez finds that American Backflow & Fire Prevention, Inc. violated multiple sections of the National Labor Relations Act in its dealings with two unions following a successful unionization campaign.

In June 2021, Plumbers Local 130 and Sprinkler Fitters Local 281 were certified as joint representatives of a bargaining unit covering plumbers, sprinkler technicians, and backflow technicians at the company's Wauconda, Illinois facility. Following certification, the company engaged in a series of unlawful actions, including:

1. Displaying an anti-union sign at its main entrance, which the judge found would reasonably lead applicants to believe they would not be hired if they were union members.

2. Refusing to consider for hire or hire three individuals (Thomas Jennrich, Philip Roknich, and Michael Laskarin) because of their union affiliations. For Jennrich and Roknich, the judge found that while they were not genuine job applicants under Toering Electric, the company still unlawfully excluded them from consideration. Laskarin was found to be a genuine applicant who was unlawfully denied employment.

3. Changing its hiring practices by altering its website to indicate it was not hiring for bargaining unit positions and refusing to accept hard-copy job applications - changes made in direct response to union activity.

4. Discontinuing its practice of conducting annual performance appraisals and issuing performance-based pay increases without bargaining with the unions. The judge found this violated both Section 8(a)(3) (discrimination) and 8(a)(5) (failure to bargain).

5. Transferring substantial bargaining unit work to managers, supervisors, and non-unit employees without bargaining. The evidence showed dramatic increases in work orders assigned to managers after the union certification, while the bargaining unit shrank from 14 to 5 employees.

6. Changing its practice of granting wage increases of $5 per hour to employees obtaining trade certifications. The company granted larger increases to certain employees without bargaining.

7. Ultimately withdrawing recognition from the unions in March 2023 based on employee disaffection letters that the judge found were tainted by the company's unfair labor practices.

The judge applied the Wright Line framework to the discrimination allegations, finding animus in the company's conduct and statements. For the withdrawal of recognition, the judge applied the Master Slack analysis and determined that the company's unfair labor practices had a causal relationship with employees' disaffection from the unions.

The remedies ordered include reinstatement with backpay for Laskarin, restoration of past practices, make-whole relief for affected employees, an affirmative bargaining order, a 120-day notice posting period, and a notice reading requirement.

Significant Cases Cited

1. FES, 331 NLRB 9 (2000) - Established the framework for analyzing refusal-to-consider and refusal-to-hire allegations.

2. Toering Electric Co., 351 NLRB 225 (2007) - Modified the FES framework by requiring the General Counsel to prove an applicant's genuine interest in seeking employment.

3. Wright Line, 251 NLRB 1083 (1980) - Set forth the burden-shifting framework for analyzing discrimination claims under Section 8(a)(3).

4. Master Slack Corp., 271 NLRB 78 (1984) - Established a four-factor test for determining whether a causal relationship exists between unfair labor practices and employee disaffection.

5. Levitz Furniture Co., 333 NLRB 717 (2001) - Held that an employer can only withdraw recognition if it has objective evidence of the union's loss of majority support.

Utility Lines Construction Services, LLC, 07-RC-359035 (Regional Election Decision)

The NLRB Regional Director issued a Decision and Direction of Election regarding a petition filed by Utility Workers Union of America Local 223 to represent inventory clerks at Utility Lines Construction Services' facilities in Warren and Wayland, Michigan. The key issue was whether to conduct an in-person or mail ballot election.

The Employer argued for manual elections at each facility, contending there were no unique circumstances warranting a mail ballot election under established precedent. They specifically argued the employees were not geographically scattered and that conserving Board resources alone couldn't justify a mail ballot.

The Regional Director determined a mail ballot election was appropriate based on several factors. First, the unit consists of only two employees who work at facilities located 169 miles apart. Second, there was no evidence the employees regularly visit a common facility at common times. The Director relied on precedent establishing that "scattered" criteria apply when employees cannot be present at the same place at the same time.

Significant Cases Cited

• San Diego Gas & Electric, 325 NLRB 1143 (1998) - Established criteria for determining when mail ballot elections are appropriate, including geographic scattering of employees

• National Van Lines, 120 NLRB 1343 (1958) - Established that Regional Director decisions on election arrangements should not be overturned absent clear abuse of discretion

• NLRB v. A.J. Tower Co., 329 U.S. 324 (1946) - Affirmed the Board's broad discretion in establishing procedures to ensure fair and free choice of bargaining representatives