03/18/2025: ALJ Declines to Issue Cemex Bargaining Order in Starbucks Case
One, minor unfair labor practice is not enough to get a bargaining order.
Starbucks Corporation, JD-23-25, 14-CA-334485 (ALJ Decision)
This decision involves allegations that Starbucks Corporation violated Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act at its Saint Ann, Missouri store. The case arose following a union organizing campaign at the store in late 2023. On December 7, 2023, the Chicago and Midwest Regional Joint Board of Workers United/SEIU filed a petition to represent baristas and shift supervisors at the store. That same day, employees conducted a "March on the Boss" and presented the store manager with a letter stating that a majority of employees had designated the union as their bargaining representative. Starbucks declined to recognize the union, and an election was held on January 22, 2024, which the union narrowly lost by a vote of 8 to 11.
The General Counsel alleged that Starbucks committed unfair labor practices during the critical period between the petition filing and the election. Specifically, the allegations were that Store Manager Vicky Ledwon: (1) prohibited employees from posting union literature and information about employees' rights; (2) selectively enforced Starbucks' solicitation/distribution policy against union supporters; (3) threatened employees with reprisals for engaging in protected activities; and (4) prohibited employees from recording a conversation about unionization. The General Counsel sought a bargaining order under the Board's decision in Cemex.
Store Operations and Policies
Starbucks' Saint Ann store had approximately 21 baristas and shift supervisors in late 2023. The store manager, Vicky Ledwon, had been in that position since June 2021. The store was divided between the public front-of-house area and the private back-of-house area. Since there was no dedicated break area, employees used the back-of-house area for breaks.
The company maintained a "Soliciting/Distributing Notices" policy that prohibited employees from distributing or posting printed materials in work areas except for Starbucks-sponsored events. It also had a "Video Recording, Audio Recording and Photography" policy that prohibited personal recording without consent except as protected under federal labor laws.
Union Organizing Campaign
In November 2023, store employees began a union organizing effort. By December 7, 2023, organizers had collected signed authorization cards from 18 of the 21 baristas and shift supervisors. During December, several incidents occurred involving the posting of materials in the back-of-house area. Employees posted union-related materials and information about employee rights, which Ledwon removed, citing the company's solicitation policy. Meanwhile, other non-work-related postings, such as a Hanukkah party invitation, were allowed to remain posted for a period.
On December 31, 2023, Ledwon engaged in a conversation with employee Storm Victor about unionization and its potential effects on employment terms. When Victor began secretly recording this conversation, Ledwon told her to stop, citing the company's recording policy. Victor refused, and Ledwon ended the conversation.
Legal Analysis and Findings
Administrative Law Judge Andrew S. Gollin analyzed each allegation:
Removal of Postings/Selective Policy Enforcement: The ALJ found that the General Counsel failed to establish that Starbucks selectively enforced its posting policy. While a Hanukkah party invitation remained posted for about 9 days, the ALJ considered this a single, isolated deviation insufficient to establish discriminatory enforcement under Board precedent.
Alleged Threats: The ALJ did not credit employee testimony that Ledwon threatened employees regarding their union activities. Based on contemporaneous text messages sent by the employee, the ALJ concluded that no threats were made.
Prohibition on Recording: The ALJ determined that Starbucks violated Section 8(a)(1) when Ledwon prohibited Victor from recording their conversation about unionization. The ALJ found that Victor was engaged in protected concerted activity by recording a conversation where Ledwon was discussing the organizing effort and its potential effects on employment terms.
Section 8(a)(5) Violation and Bargaining Order: Despite finding a Section 8(a)(1) violation regarding the recording prohibition, the ALJ concluded that this single violation was "so minimal and isolated that it is virtually impossible to conclude that it affected the results of the election." Therefore, he declined to recommend a Cemex bargaining order.
Remedy
For the single violation found, the ALJ ordered Starbucks to cease and desist from prohibiting employees from recording conversations with management discussing union organizing efforts and to post a notice informing employees of their rights.
Significance of the Decision
This decision illustrates the Board's standards for determining when employer conduct warrants the issuance of a bargaining order under Cemex. The ALJ concluded that even though Starbucks committed a Section 8(a)(1) violation during the critical period, the violation was too minimal and isolated to warrant setting aside the election or issuing a bargaining order.
Significant Cases Cited
Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023): Established a new standard for determining whether a bargaining order is appropriate when an employer refuses to recognize a union with majority support.
Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945): Established that employees have the right to engage in union solicitation/distribution during non-work time and in non-work areas.
Whole Foods Market, Inc., 363 NLRB 800 (2015): Held that audio and video recordings are protected by Section 7 if employees are acting in concert for mutual aid and protection.
Longs Drug Stores California, 347 NLRB 500 (2006): Established that violations are too minimal to set aside an election if "it is virtually impossible to conclude that the misconduct could have affected the election results."
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Addressed the validity of authorization cards and the circumstances under which a bargaining order may be issued.