03/28/2025: Starbucks Workers "March On the Boss" Did Not Lose Protection
Employer dinged for discriminatorily refusing to hire a union salt.
Starbucks Corporation, 374 NLRB No. 23, 21-CA-295845 (Published Board Decision)
The National Labor Relations Board (NLRB) issued a decision in a case involving Starbucks Corporation and Workers United, addressing allegations of unfair labor practices at a Starbucks store in downtown Los Angeles. The Board affirmed Administrative Law Judge (ALJ) Jeffrey D. Wedekind's dismissal of a complaint allegation that Starbucks violated Section 8(a)(5) and (1) of the National Labor Relations Act by failing to provide the Union with prior notice and an opportunity to bargain over its decision to discipline employee Araseli Romero and the effects of that decision.
Although the General Counsel urged the Board to reconsider and overturn the precedent in Care One at New Milford, which held that employers are not required to bargain over discretionary discipline of individual employees prior to reaching a first collective bargaining agreement, the Board declined to do so in this case. Members Prouty and Wilcox did, however, indicate they would be open to reconsidering Care One in a future appropriate case.
Significant Cases Cited
Care One at New Milford, 369 NLRB No. 109 (2020): Held that employers are not required to bargain over discretionary discipline of individual employees prior to reaching a first collective bargaining agreement.
Total Security Management Illinois 1, LLC, 364 NLRB 1532 (2016): Previously required employers to bargain with unions before imposing certain discretionary discipline prior to a first contract.
Starbucks Corporation, JD-26-25, 10-CA-300921 (ALJ Decision)
This NLRB decision addresses allegations that Starbucks violated labor laws through actions taken against employees at its Anderson, South Carolina store (referred to as "CB2") following unionization and protected concerted activities.
Nighttime 5
The case involves several key events in 2022: a July 22-24 strike, employees entering the closed store on July 24 to clean it (the "Nighttime 5"), an August 1 "March on the Boss" activity, and subsequent actions by Starbucks including suspensions, store closure, reduced hours, and discipline.
Administrative Law Judge Lisa Friedheim-Weis found that Starbucks lawfully discharged five employees (the "Nighttime 5") who entered the store without authorization after hours on July 24. The judge determined that while these employees had engaged in protected union activities, Starbucks proved it would have taken the same action regardless of their union involvement. The employees admitted they did not obtain management permission to enter the closed store, and comparable cases showed Starbucks consistently discharged employees for unauthorized store entry.
March on the Boss
However, the judge ruled that Starbucks violated Sections 8(a)(3) and (1) of the National Labor Relations Act when it suspended, banned from stores, and issued final written warnings to employees who participated in the August 1 "March on the Boss." This concerted activity, where employees gathered to demand a pay raise that non-unionized stores received, retained legal protection under the Act.
Starbucks alleged that the employees who participated in the March on the Boss engaged in conduct that violated the company's Workplace Violence Policy. Specifically, Starbucks claimed the employees:
Formed an intimidating semi-circle around Store Manager Melissa Morris
Blocked Morris from leaving her seated position at a table
Failed to move out of Morris' path when she attempted to walk around the table
Made physical contact with employee Jon Hudson (though the video evidence showed that it was Morris who initiated contact while moving past him)
Allegedly blocked Morris' exit from the store
Created an intimidating environment that made Morris fear for her safety
Starbucks characterized this as a "Block the Boss" incident rather than a "March on the Boss" and claimed the employees' conduct was sufficiently egregious to lose protection under the Act.
The Administrative Law Judge, applying the four Atlantic Steel factors (place of discussion, subject matter, nature of outburst, and provocation), found that the employees' conduct did not lose protection. The judge determined that:
The place was appropriate as they chose a slow time with few customers present
The subject matter involved legitimate labor concerns about wages and working conditions
The nature of the "outburst" was minimal - no yelling, profanity, or physical threats occurred
There was no provocation that would have justified losing protection
The judge specifically noted that the video evidence contradicted Starbucks' claims, showing that Morris was able to leave the store, that employees didn't block exits, and that their conduct was not objectively threatening.
Closure and Hours Reduction
Additionally, the judge found that Starbucks violated Sections 8(a)(3), (5), and (1) by closing the store from August 6-8 and reducing its operating hours afterward without notifying or bargaining with the union. These actions resulted directly from the unlawful suspensions and were taken without required bargaining.
The judge dismissed allegations that Starbucks violated Section 8(a)(5) by failing to bargain over disciplinary actions, following current Board precedent in Care One at New Milford. While the General Counsel sought to overturn this precedent, the judge noted that administrative law judges must apply existing Board law.
The decision orders Starbucks to cease and desist from the unlawful conduct, remove records of the unlawful suspensions and final written warnings, and bargain with the union over any store closings or changes in hours.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established the framework for analyzing discrimination cases where both lawful and unlawful motives may exist.
Atlantic Steel, 245 NLRB 814 (1979): Created four-factor test to determine whether an employee's conduct during otherwise protected activity is sufficiently egregious to lose protection.
Care One at New Milford, 369 NLRB No. 109 (2020): Held that employers need not bargain with a union over discretionary discipline issued prior to negotiation of a first contract.
Eugene Iovine, Inc., 328 NLRB 294 (1999): Established that employers must give unions notice and opportunity to bargain before implementing changes like store closures or hour reductions.
Lion Elastomers LLC, 372 NLRB No. 83 (2023): Reaffirmed the Atlantic Steel standard for evaluating employee misconduct during protected concerted activity.
Rahn Home Services D/B/a Benjamin Franklin Plumbing, JD-25-25, 18-CA-318406 (ALJ Decision)
This case concerns allegations that Rahn Homes Services (operating as Benjamin Franklin Plumbing and later as On Time Service Pros) committed multiple unfair labor practices during a union organizing campaign by the Minnesota Pipe Trades Association in May 2023.
The organizing campaign began on May 3, 2023, when employee Ryan Kukuzke delivered a letter to owner Jeff Rahn notifying him that employees had initiated a union organizing campaign. The very next day, the company removed a job posting for a licensed plumber from Indeed.com. Following this, plumbing supervisor Brian Mueller had multiple conversations with employees about the union organizing efforts, and on May 11, 2023, Rahn held an all-plumbers meeting to discuss the campaign.
During this period, Scott Ludwig, a union organizer with Minnesota Pipe Trades Association who was a licensed plumber, submitted a job application. Soon after, the company's HR manager informed Ludwig that the company was in a hiring freeze. The General Counsel alleged that the company's refusal to hire Ludwig violated Section 8(a)(3) and (1) of the National Labor Relations Act.
The ALJ found that numerous statements by company officials violated Section 8(a)(1), including threats of plant closure, telling employees that supporting the union was like "stabbing the company in the back," telling employees they should work elsewhere if they wanted a union, creating the impression of surveillance, promising benefits to discourage union support, interrogating employees about their union sympathies, and telling employees unionization would be futile.
The most significant violation found was the company's refusal to hire Ludwig due to his union activity. The ALJ rejected the company's claim that it had implemented a hiring freeze due to a need to train existing plumbers, finding this explanation pretextual. Instead, the ALJ determined that the timing of the hiring freeze—one day after learning of the organizing campaign—as well as the company's shifting explanations, demonstrated anti-union animus.
The ALJ ordered the company to cease and desist from the unfair labor practices, offer Ludwig employment, make him whole for lost earnings and benefits, remove references to the refusal to hire from his file, and post appropriate notices.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established the framework for analyzing discriminatory motivation in cases alleging violations of Section 8(a)(3).
FES, 331 NLRB 9 (2000): Set forth the framework for analyzing refusal to hire allegations.
Toering Elec. Co., 351 NLRB 225 (2007): Held that before an employer's motivation for a refusal to hire can be considered, the General Counsel must establish that the job applicant was genuinely interested in employment.
NLRB v. Town & Country Electric, 516 U.S. 85 (1995): Recognized that union organizers/salts who apply for positions with a non-union employer are employees within the meaning of Section 2(3) of the Act.
NLRB v. Exchange Parts Co., 375 U.S. 405 (1964): Established that a promise of benefits during an organizing campaign violates Section 8(a)(1) if conditioned upon employees abandoning union support.