04/04/2025: Starbucks Illegally Called the Cops on Union Handbillers

Non-disparagement clauses still illegal.

Starbucks Corporation, JD-29-25, 03-CA-329453 (ALJ Decision)

This case involves allegations that Starbucks Corporation violated Section 8(a)(1) of the National Labor Relations Act through surveillance of union activities and by calling police on employees engaged in protected union activities at two Buffalo, New York locations.

Administrative Law Judge Christal J. Key heard the case on December 11, 2024, addressing consolidated complaints concerning incidents at the Lancaster (also known as Transit & Regal) and Williamsville Place stores. The first allegation concerned District Manager Varinia Dawn Boyd's conduct on October 26, 2023, at the Williamsville Place store. The second involved Store Manager Alyssa Schieda calling police on employees distributing union literature at the Lancaster store on November 16, 2023.

Michelle Eisen, a barista since 2010 and union organizer, had been prominently involved in unionization efforts, including testifying before Congress and participating in various strikes. Eisen visited the Williamsville Place store on October 26, 2023, to discuss a planned union action for Starbucks' "Red Cup Day" with employees.

When Eisen entered, Boyd, who was already in the store for a scheduled visit, immediately approached her, standing unusually close while Eisen spoke with employees. Boyd maintained proximity to Eisen throughout her visit, behaving in what the judge determined was an "out of the ordinary" manner compared to her interactions with other customers that day. Surveillance videos confirmed this conduct.

On November 16, 2023, employees and non-employees distributed union handbills at the Lancaster store. While Starbucks had the right to remove non-employees from its property, when Schieda called police, she asked for removal of all individuals distributing literature, including employees engaged in protected activity. The police subsequently instructed all five handbillers, including the employees, to leave the property.

Judge Key found Eisen's testimony credible and Boyd's testimony largely not credible. The judge determined that Boyd's conduct during Eisen's visit was "out of the ordinary and thereby coercive," noting that Boyd treated Eisen differently than any other customer that day. The judge concluded Boyd knew of Eisen's union activities and positioned herself near Eisen to surveil or prevent union activities.

Regarding the police incident, the judge found that while Starbucks could legitimately remove non-employee handbillers, Schieda's request for police to remove all handbillers, including employees, violated the Act.

The judge ordered Starbucks to cease and desist from surveillance and from calling police on employees engaged in protected union activities. The remedy included posting notices at both locations and holding meetings where the notice would be read aloud to employees.

The judge also addressed Starbucks' constitutional challenges to the NLRB's structure and procedures, ultimately rejecting these arguments as matters for federal courts to decide.

Significant Cases Cited

• Sands Hotel & Casino, San Juan, 306 NLRB 172 (1992): Established that employer surveillance of employees engaged in Section 7 activity that is "out of the ordinary" is coercive and unlawful.

• Fred'k Wallace & Son, Inc., 331 NLRB 914 (2000): Clarified that mere observation of open, public union activity on or near employer property does not constitute unlawful surveillance.

• United Charter Service, 306 NLRB 150 (1992): Held that employers create an impression of surveillance when employees would reasonably assume their union activities are being monitored.

• Nations Rent, Inc., 342 NLRB 179 (2004): Confirmed employers may seek police intervention against pickets when motivated by reasonable concerns like public safety.

• Roadway Package Systems Inc., 302 NLRB 961 (1991): Established that employers violate Section 8(a)(1) when calling police in response to protected employee handbilling activity.

Televicentro of Puerto Rico, LLC D/B/a WAPA-TV, JD-28-25, 12-CA-318092 (ALJ Decision)

This decision, issued by Administrative Law Judge G. Rebekah Ramirez on April 2, 2025, concerns alleged violations of the National Labor Relations Act (NLRA) by Televicentro of Puerto Rico, LLC d/b/a WAPA-TV. The case addresses overly broad provisions in "exclusivity agreements" between Televicentro and certain bargaining unit employees who work as television news anchors.

Unión de Periodistas, Artes Gráficas y Ramas Anexas (UPAGRA), Local 33225, the union representing Televicentro employees, filed charges alleging that certain provisions in these exclusivity agreements violated Section 8(a)(1) of the NLRA by restricting employees' Section 7 rights. The case proceeded based on a stipulated record rather than an evidentiary hearing.

Prior to the decision, the Acting General Counsel withdrew portions of the complaint that alleged the solicitation and non-competition provisions in the exclusivity agreements were unlawful, following the rescission of a prior General Counsel memorandum regarding non-compete agreements.

The ALJ examined three contested provisions in the exclusivity agreements:

1. A termination provision allowing for termination for "egregiously offensive" comments toward the company that "may disrupt or harm Company operations" or for violation of "any duty of loyalty."

2. A non-contempt provision prohibiting employees from "denigrating, discrediting or disparaging" the company or mentioning the company "in an unfavorable manner."

3. A choice of forum provision stating disputes regarding the agreement "shall not be subject to any complaints and grievances procedures."

Applying the standard from Stericycle, Inc., the ALJ found these provisions were presumptively unlawful because employees could reasonably interpret them to restrict protected Section 7 activities, such as discussing terms and conditions of employment, complaining about management, or engaging in union activities. The ALJ held that Televicentro failed to demonstrate how these broad restrictions advanced legitimate business interests that could not be achieved through more narrowly tailored rules.

For the termination provision, the ALJ found the terms "egregiously offensive" and comments that "may" disrupt operations to be overly vague and potentially encompassing protected activities like criticizing management. Similarly, the non-contempt provision's prohibition on "unfavorable" statements could reasonably be interpreted as preventing employees from criticizing their employment terms or conditions, including those in the exclusivity agreement itself.

The choice of forum provision explicitly prohibited employees from filing grievances over disputes arising under the exclusivity agreement, directly interfering with employees' right to engage in concerted activity through their union. The ALJ rejected Televicentro's argument that the collective bargaining agreement authorized these restrictions, noting that the union filed charges shortly after receiving a copy of an exclusivity agreement.

The ALJ ordered Televicentro to rescind the unlawful provisions, provide notice to affected employees, and post appropriate notices regarding the violations.

Significant Cases Cited

• Stericycle, Inc., 372 NLRB No. 113 (2023): Established the standard for evaluating facially neutral work rules from the perspective of an economically dependent employee.

• Union Tank Car Company, 369 NLRB No. 120 (2020): Recognized that discussing terms and conditions of employment with coworkers is at the heart of protected Section 7 activity.

• Multi-Ad Services, 331 NLRB 1226 (2000): Established the objective test for evaluating whether employer conduct would reasonably tend to interfere with Section 7 rights.

• MasTec Advanced Technologies, 357 NLRB 103 (2011): Held that employee communications to third parties in labor disputes are protected unless disloyal, reckless, or maliciously untrue.

• Claremont Resort & Spa, 344 NLRB 832 (2005): Recognized that an employee complaining to a coworker about a supervisor constitutes protected concerted activity.

Satellite Healthcare, Inc., JD(SF)-08-25, 20-CA-315531 (ALJ Decision)

This NLRB Administrative Law Judge (ALJ) decision addresses multiple unfair labor practice allegations against Satellite Healthcare, Inc., which operates dialysis centers across seven states. The case involves seven facilities in the San Francisco Bay Area where the Service Employees International Union, United Healthcare Workers-West (the Union) filed representation petitions in 2022 and 2023. The Union was certified as the bargaining representative at these facilities between January and August 2023.

The decision addresses numerous allegations that Satellite violated Sections 8(a)(1), 8(a)(3), and 8(a)(5) of the National Labor Relations Act during the Union's organizing campaign and following certification. These violations included coercive statements, withholding merit wage increases, unilaterally changing workplace policies, disciplining and discharging employees, refusing to bargain in good faith, and failing to timely furnish requested information.

Background

Satellite operates more than 90 dialysis centers across seven states. Each facility is staffed by clinic managers, registered nurses, technicians, dieticians, social workers, and other staff. The Union began organizing in Fall 2022, filing initial representation petitions for clinics in San Francisco, Gilroy, Blossom Valley, and Morgan Hill. Elections were conducted in December 2022, and the Union was certified at these facilities in January 2023. Additional petitions were filed for Vallejo, Rohnert Park, and Folsom facilities, with the Union being certified at these locations between May and July 2023.

Section 8(a)(1) Violations

The ALJ found that Satellite managers made numerous coercive statements in violation of Section 8(a)(1), including:

1. At the Vallejo clinic, Clinic Manager Hernandez threatened that Satellite would not hire applicants who supported the Union, suggested employees would be blacklisted by other dialysis companies, and threatened that clinics might close due to unionization.

2. Various managers at different facilities told employees they would not receive annual merit wage increases because they had voted for the Union or were engaged in collective bargaining.

3. A manager misinformed employees that they did not have the right to union representation during investigatory interviews because they did not yet have a contract.

Section 8(a)(3) Violations

The ALJ determined that Satellite discriminatorily withheld annual merit wage increases from represented employees at the four initially unionized facilities while granting those increases to non-union employees. For more than 20 years, employees had received merit increases every spring, creating an established practice that employees could reasonably expect to continue.

The ALJ also found that Satellite unlawfully disciplined and discharged Cathy Mendoza, a registered nurse at the Vallejo facility and leading union supporter. Despite Mendoza's history of tardiness that was previously tolerated, Satellite began issuing her warnings just 11 days after she publicly supported the Union, ultimately leading to her discharge. The ALJ found this was retaliation for her union activities.

Additionally, the ALJ found that Satellite unlawfully announced stricter interpretations of its time and attendance policies at the Vallejo facility in retaliation for employees' union activities.

Section 8(a)(5) Violations

The ALJ concluded that Satellite violated its duty to bargain in good faith by:

1. Unilaterally withholding merit wage increases from union-represented employees without first providing the Union with notice and an opportunity to bargain.

2. Unilaterally changing policies regarding signing in and out for breaks and for clocking in for shifts at the Vallejo facility without bargaining.

3. Terminating Mendoza without providing the Union with notice and an opportunity to bargain.

4. Unreasonably delaying in furnishing relevant information requested by the Union, particularly information about wage scales and ranges that was not provided until eight months after the initial request.

However, the ALJ dismissed allegations that Satellite violated Section 8(a)(5) by failing to bargain in good faith through delay tactics, finding that postponements in starting bargaining were due to legitimate business circumstances beyond Satellite's control.

Remedy

The ALJ ordered Satellite to cease and desist from the unfair labor practices and to take affirmative actions, including:

1. Reinstating Mendoza with backpay and making her whole for any losses.

2. Making all affected employees whole for lost merit increases.

3. Rescinding the unlawful changes to time and attendance policies.

4. Posting notices at all seven facilities informing employees of their rights.

The ALJ declined to grant additional remedies requested by the General Counsel, such as a notice reading, mandatory training, and a letter of apology to Mendoza.

Significant Cases Cited

• Wright Line Industries, 251 NLRB 1083 (1980): Established the burden-shifting framework for analyzing discrimination cases.

• NLRB v. Katz, 369 U.S. 736 (1962): Held that an employer violates Section 8(a)(5) by changing unit employees' terms and conditions of employment without providing notice and opportunity to bargain.

• Mission Foods, 350 NLRB 336 (2007): Established that a wage increase program constitutes a term or condition of employment when it is an established practice regularly expected by employees.

• Ferguson Enterprises, Inc., 349 NLRB 617 (2007): Found that discipline issued pursuant to an unlawfully implemented policy is also unlawful.

• 800 River Road Operating Co., LLC dba Care One at New Milford, 369 NLRB No. 109 (2020): Addressed whether employers are required to bargain over serious discretionary discipline before reaching an initial collective-bargaining agreement.

Boise Cascade, 12-RC-359261 (Regional Election Decision)

This decision involves a petition filed by International Brotherhood of Teamsters, Local Union No. 769 seeking to represent a unit of truck drivers, warehouse workers, material handlers, maintenance specialists, and crew leaders at Boise Cascade Company's facilities in Pompano Beach and West Palm Beach, Florida.

The Employer manufactures and distributes wood products and building materials, with approximately 30 employees in the petitioned-for unit (17 at Pompano Beach and 13 at West Palm Beach). The company contested the appropriateness of a multi-facility unit, arguing that: (1) employees at the two facilities don't share a community of interest, (2) the Pompano Beach facility is closing on May 31, 2025, and (3) the West Palm Beach facility will expand with employees from Pompano Beach and a potential new Miami facility. The Employer also contended that freight specialists and an assistant freight specialist should be included in any appropriate unit.

The Regional Director first addressed the Employer's request to stay proceedings due to the NLRB lacking a three-member quorum between January and March 2025. This request was denied because the Board had previously delegated authority to Regional Directors to process representation cases even during periods without a Board quorum.

On the merits, the Regional Director found the petitioned-for two-facility unit appropriate based on:

1. The similarity of employees' skills, duties, and working conditions at both facilities

2. Centralized control of management and supervision from the West Palm Beach facility

3. High degree of functional integration between the facilities

4. The fact that all Pompano Beach employees will be offered positions at either West Palm Beach or the anticipated Miami facility when Pompano Beach closes

The Regional Director determined that the impending closure of the Pompano Beach facility and possible opening of a Miami facility did not affect the appropriateness of the unit because the Employer's operations would continue essentially unchanged, just at different locations.

Regarding the freight specialists and assistant freight specialist, the Regional Director found they did not share an overwhelming community of interest with the petitioned-for employees because they perform dispatch functions in separate office locations with distinct job duties.

The Regional Director directed an election be held on April 15, 2025, at both facilities.

Significant Cases Cited

• American Steel Construction, Inc., 372 NLRB No. 23 (2022): Reinstated the Specialty Healthcare community-of-interest standard for determining appropriate bargaining units.

• Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011): Established that petitioned-for units must share an internal community of interest and be sufficiently distinct from excluded employees.

• Waste Management Northwest, 331 NLRB 309 (2000): Found a two-facility unit appropriate based on similarity of duties, centralized management, and functional integration despite geographic distance.

• Exemplar, Inc., 363 NLRB 1500 (2016): Outlined factors for evaluating multi-facility units, including skills, supervision, integration, proximity, and bargaining history.

• Retro Environmental, Inc./Green Jobworks, LLC, 364 NLRB 922 (2016): Established when cessation of operations would warrant dismissal of a petition.

Board's Interest Rate Remains at 7 Percent for the Third Quarter, Fiscal Year 2025, OM 25-06, (OM Memo)

This interest rate is applied to Board remedies that involve money.

N.L.R.B. V. Nexstar Media Inc., 24-2818, (Second Circuit)

The United States Court of Appeals for the Second Circuit issued this decision addressing whether the Court has jurisdiction to review an enforcement application from the National Labor Relations Board (NLRB) when a discrete remedial issue has been severed from the order.

The case involves the NLRB seeking enforcement of its August 29, 2024 order that directed Nexstar Media Inc. to recognize and bargain with the National Association of Broadcast Employees & Technicians-Communications Workers of America, AFL-CIO. The NLRB's order had reserved for future consideration the issue of whether Nexstar should compensate its employees for delaying bargaining with the Union (referred to as the "remedial-relief issue").

Nexstar moved to dismiss the enforcement proceeding, arguing that the Court lacked jurisdiction because the NLRB's August 2024 order was not final due to the reserved remedial-relief issue. The Second Circuit panel, consisting of Judges Dennis Jacobs, Denny Chin, and Sarah A. L. Merriam, denied Nexstar's motion to dismiss.

In its decision, the Court acknowledged that it had not previously decided in a precedential opinion whether the NLRB's severance of a discrete remedial issue affects the Court's jurisdiction to review an otherwise final order. The Court noted a previous non-precedential summary order that concluded such severance does not impact jurisdiction, and that four sister Circuits had held that severance of a discrete remedial issue does not necessarily render an NLRB order non-final.

The Court applied a two-part test from Bennett v. Spear to determine whether the NLRB's order was "final." First, the action must mark the consummation of the agency's decision-making process. Second, the action must be one by which rights or obligations have been determined or from which legal consequences will flow.

The Court found that the NLRB's order satisfied both criteria. First, the determination that Nexstar improperly failed to recognize or bargain with the Union marked the "consummation" of the NLRB's decision-making process on Nexstar's bargaining obligation. There was no indication that the Board would change its position on the refusal-to-bargain issue in any severed proceeding regarding the remedial-relief issue. Second, the order determined Nexstar must perform an action—bargaining with the Union—that would result in legal consequences if enforced.

The Court concluded that under these circumstances, the Board's order was final, and the Court had jurisdiction over the Board's petition to enforce it. The motion to dismiss was denied.

Significant Cases Cited

• Bennett v. Spear, 520 U.S. 154, 177-78 (1997): Established the two-part test for determining when an agency action is "final" for purposes of judicial review.

• Darby v. Cisneros, 509 U.S. 137, 144 (1993): Defined when an agency process reaches "consummation" as when the agency "has arrived at a definitive position on the issue."

• Salazar v. King, 822 F.3d 61, 82 (2d Cir. 2016): Clarified that the core question for the second prong of the finality test is whether the result of the agency's decision-making process will directly affect the parties.

• N.L.R.B. v. Siren Retail Corp., 99 F.4th 1118, 1123-24 (9th Cir. 2024): Held that the NLRB's severance of a discrete remedial issue does not necessarily render an order non-final.

• Longmont United Hosp. v. N.L.R.B., 70 F.4th 573, 578 (D.C. Cir. 2023): Concluded that the NLRB's severance of a discrete remedial issue does not impact jurisdiction to review an otherwise final order.