05/01/2025: ALJ Did Not Issue Bargaining Order for ULPs During Critical Period

The unfair labor practices were were not Cemex "hallmark" violations.

Mattos Hospitality, LLC and Tourbillon1, LLC., Joint Employers D/B/a Lodi, JD-36-25, 02-CA-312392 (ALJ Decision)

This case involves a labor dispute between Mattos Hospitality, LLC and Tourbillion1 (d/b/a Lodi), a café restaurant located in Rockefeller Center in New York City, and the Restaurant Workers Union, Local 1. The case addresses unfair labor practice charges and objections to a representation election held on February 27-28, 2023, which the Union lost 21-26.

The dispute began in January 2023 when restaurant employees, led by server Eric Schmidt, organized a unionization campaign. On January 25, 2023, employees presented a letter to Chef Ignacio Mattos (CEO) requesting voluntary recognition of the Union. Mattos declined, and the Union filed a representation petition the next day. During the critical period before the election, the restaurant management increased their presence at the workplace, held meetings with employees, and engaged in various communications regarding the Union.

The Administrative Law Judge (ALJ) found that the restaurant violated Section 8(a)(1) of the National Labor Relations Act in three instances:

1. On February 8, 2023, when labor consultant Luis Alvarez told employees he knew about their text messages discussing him, creating an impression of surveillance.

2. On February 24, 2023, when CEO Mattos solicited employee complaints and promised to help resolve them during a mandatory meeting.

3. On March 3, 2023, when General Manager Sophie Fitzpatrick quoted language from employees' private Union chat, again creating an impression of surveillance.

The ALJ dismissed numerous other allegations, including claims of closer supervision, improper solicitation of grievances by other managers, threats of restaurant closure, threats regarding immigration status, and threats of unspecified reprisals. The ALJ also dismissed allegations against prep team leader Gladis Lopez, finding she was not a supervisor or agent of the employer despite her anti-union activities.

Significantly, the ALJ rejected the Acting General Counsel's request for a bargaining order under the NLRB's Cemex framework. While three of the four Cemex factors were proven (rejection of Union's request to bargain, majority representation, appropriate unit), the ALJ found that the two violations during the critical period were not "hallmark violations" severe enough to warrant setting aside the election results.

The ALJ also determined that a rerun election was not justified, as it was "virtually impossible to conclude that the misconduct could have affected the election results." The ALJ noted that the violations were minimal, one was isolated to a small group, and employee concerns about immigration status and union dues appeared to have significantly influenced the outcome independently of the employer's conduct.

For remedies, the ALJ ordered the restaurant to cease and desist from the unfair labor practices and to post notices. The Section 8(a)(5) allegations regarding refusal to bargain were dismissed.

Significant Cases Cited

• Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023): Established new framework for bargaining orders when an employer rejects a union's request to bargain and commits unfair labor practices.

• Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301 (1974): Held that an employer does not violate Section 8(a)(5) solely by refusing to accept evidence of majority status other than Board election results.

• Arrow Automotive Industries, 258 NLRB 860 (1981): Established that management officials may observe public union activity provided it is not "out of the ordinary."

• Flexsteel Industries, 311 NLRB 257 (1993): Held that employees should be free to participate in union activities without fear of management monitoring.

• Dal-Tex Optical Co., 137 NLRB 1782 (1962): Established that elections must be set aside when employer violations result in "substantial interference" with employees' free choice.

Starbucks Corporation, JD-35-25, 04-CA-335181 (ALJ Decision)

This NLRB case involves allegations that Starbucks Corporation violated several provisions of the National Labor Relations Act at its 20th & Market Street store in Philadelphia, Pennsylvania. The case was decided by Administrative Law Judge Susannah Merritt on April 29, 2025.

Background

Workers United Labor Union International was certified as the bargaining representative for baristas and shift supervisors at the store on June 3, 2022, following a successful election on May 25, 2022. Despite certification, no collective bargaining agreement had been reached. The store had a history of union activity, including participation in national strikes and "March on the Boss" events. The store also had a previous NLRB case where violations were found against Starbucks.

In March 2023, Mikeira Cole became the store manager, replacing Whitney Grubbs. In April 2023, Cole announced she would begin strictly enforcing Starbucks' Attendance and Punctuality policy, which had not been previously enforced under Grubbs' management. Cole told shift supervisors that she intended to enforce policies so strictly that employees would either quit or be fired after accumulating enough disciplinary actions.

Key Findings

The ALJ found that Starbucks violated the NLRA in several ways:

1. Maintaining an unlawful solicitation and distribution policy: On January 23, 2024, Cole distributed a policy that directed employees to report union solicitation activities to management. This violated Section 8(a)(1).

2. Coercive statements: Cole told employees they "weren't paid to organize" and that "Starbucks' policy trumps federal law." These statements violated Section 8(a)(1).

3. Stricter enforcement of attendance policy: Starbucks began strictly enforcing its Attendance and Punctuality policy in April 2023 without notifying or bargaining with the union. This change in enforcement violated Sections 8(a)(1), 8(a)(3), and 8(a)(5).

4. Unlawful discipline and termination: Starbucks issued disciplinary actions and ultimately terminated employees Lydia Fernandez and Bria Garvey based on the stricter enforcement of attendance policies, violating Sections 8(a)(1), 8(a)(3), and 8(a)(5).

Legal Analysis

The ALJ applied several established legal principles:

Under the Wright Line framework, the General Counsel established that Starbucks' stricter enforcement of attendance policies was motivated by anti-union animus. Evidence included the timing (soon after union certification), Cole's statement about enforcing policies to make employees quit or be fired, and Starbucks' history of similar violations at other stores.

The ALJ rejected Starbucks' defense that the stricter enforcement was due to safety concerns and burdens on other partners, finding this explanation pretextual since these conditions were not new.

Regarding the 10(b) statute of limitations defense, the ALJ found that while some allegations were made more than six months after the events, they were "closely related" to timely filed charges under the Redd-I standard, making them actionable.

The ALJ also found that Starbucks violated its duty to bargain by changing enforcement of the attendance policy without notifying or bargaining with the union, as such policies are mandatory subjects of bargaining.

Remedies Ordered

The ALJ ordered Starbucks to:

1. Cease and desist from the unfair labor practices

2. Rescind the unlawful solicitation and distribution policy

3. Reinstate Fernandez and Garvey with full backpay and benefits

4. Make whole Fernandez and Garvey for any losses

5. Rescind all discipline issued under the stricter attendance policy

6. Remove references to the unlawful terminations from personnel files

7. Compensate affected employees for adverse tax consequences

8. Post notices informing employees of these remedies

The ALJ denied additional "special remedies" requested by the General Counsel, such as requiring Starbucks to issue letters of apology.

Significant Cases Cited

• Wright Line, 251 NLRB 1083 (1980): Established the framework for analyzing allegations of discrimination based on protected activity.

• Redd-I, Inc., 290 NLRB 1115 (1988): Clarified when untimely allegations can be considered "closely related" to timely filed charges.

• Dynamics Corp. of America, 286 NLRB 920 (1987): Established that it is unlawful for employers to enforce rules more strictly in response to union activity.

• Passavant Memorial Area Hospital, 237 NLRB 138 (1978): Set forth the test to determine whether an employer has adequately repudiated its violation of the Act.

• Thryv, Inc., 372 NLRB No. 22 (2022): Established the Board's make-whole remedy for direct or foreseeable pecuniary harms.

Ascend Wellness Holdings, Inc., 14-RC-362683 (Regional Election Decision)

This decision addresses whether a petitioned-for unit consisting of Kitchen and Cart Room employees at Ascend Wellness Holdings' cannabis facility in Barry, Illinois constitutes an appropriate bargaining unit. International Brotherhood of Teamsters Local 916 sought to represent a unit of 21 employees from these departments, while the employer contended that only a wall-to-wall unit of 179 employees would be appropriate.

The Regional Director analyzed the case using the American Steel framework, which requires examining whether the petitioned-for unit: (1) shares an internal community of interest, (2) is readily identifiable as a group, and (3) is sufficiently distinct from excluded employees.

Employer Operations

Ascend Wellness operates a cannabis cultivation, processing, and packaging facility in Barry, Illinois with approximately 396 employees (including 60 temporary workers). The facility is divided between "cultivation" (growing cannabis) and "operations" (converting harvested cannabis into finished products). The operations side includes multiple departments: Post-Harvest, Cure, Extraction Lab, Kitchen, Packaging, Fulfillment, Production Management, Facilities, and Materials/Inventory.

On March 3, 2025, the employer consolidated Cart Room employees (previously part of Packaging) into the Kitchen department. There are now 21 employees in the Kitchen department consisting of 7 Cart Room and 14 Kitchen employees.

Community of Interest Analysis

The Regional Director analyzed six factors to determine whether the petitioned-for unit was appropriate:

1. Departmental Organization: The Kitchen department (which now includes Cart Room employees) functions as a distinct administrative unit with its own supervisors.

2. Skills, Training, and Job Functions: Kitchen employees require Food Handler's licenses, while Cart Room employees do not. Both groups process cannabis oil into consumer products but use different equipment and techniques.

3. Functional Integration: Both Kitchen and Cart Room convert cannabis oil into consumable products (gummies and vape cartridges, respectively) as part of the production process.

4. Interchange and Contact: Limited evidence of temporary interchange between Kitchen/Cart Room and other departments. Records showed infrequent flexing of employees between departments.

5. Terms and Conditions: All employees share common handbook, benefits, scrubs/PPE, time clocks, and security badges. However, departments have different work schedules and minor wage discrepancies.

6. Separate Supervision: Each department has its own Manager and Supervisor. Kitchen Manager Cunningham and Supervisor Ward oversee only Kitchen and Cart Room employees.

Decision

The Regional Director found that the petitioned-for unit is appropriate because:

• The Kitchen and Cart Room employees are organized into a distinct department

• They have separate supervision from other departments

• They perform similar job functions in converting cannabis oil into consumer products

• They share many similar terms and conditions of employment

The Director rejected the employer's argument that an overwhelming community of interest required a wall-to-wall unit, noting the separate departmental organization, distinct supervision, and limited interchange between the petitioned-for unit and excluded employees.

The decision directed an election to be held on May 14, 2025, among all full-time and regular part-time employees in the Kitchen department, including Kitchen Associates, Kitchen Leads, Associates – Kitchen Packaging, and Leads – Kitchen Packaging.

Significant Cases Cited

• American Steel Construction, Inc., 372 NLRB No. 23 (2023): Established the framework for determining appropriate bargaining units, requiring analysis of internal community of interest, identifiability, and distinctness.

• United Operations, Inc., 338 NLRB 123 (2002): Outlined the community of interest factors for determining appropriate bargaining units.

• Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011): Earlier case establishing the framework reinstated by American Steel.

• PCC Structurals, Inc., 365 NLRB 1696 (2017): Overruled case that had previously replaced the Specialty Healthcare standard.

• The Boeing Co., 368 NLRB No. 67 (2019): Another overruled case that had modified the PCC Structurals standard before American Steel reinstated the Specialty Healthcare framework.

Sea World of Florida LLC D/B/a Discovery Cove, 12-RC-362952 (Regional Election Decision)

This case involves Sea World of Florida LLC d/b/a Discovery Cove and a petition filed by International Union of Operating Engineers, Local 30, AFL-CIO on April 1, 2025, seeking to represent a unit of maintenance divers, senior divers, dive technicians, and lead divers employed at the Orlando, Florida facility.

The primary issue in dispute was whether two "dive supervisors" (formerly called lead divers) should be classified as statutory supervisors under Section 2(11) of the National Labor Relations Act or included in the bargaining unit as eligible voters. The Employer contended they were supervisors, while the Petitioner argued they were non-supervisory employees.

The Employer also moved to dismiss or hold the case in abeyance, arguing that the National Labor Relations Board lacked a quorum and that the Regional Director had no authority to certify election results. The Employer further challenged the constitutionality of removal protections for Board members.

The Regional Director denied the Employer's motion, citing Board precedent that regional directors can process representation cases under authority delegated before a loss of Board quorum. The Director noted Board Rules and Regulations support continuing normal operations to the extent permitted by law when the Board lacks a quorum.

On the primary issue, the Director conducted an extensive analysis of the dive supervisors' duties and authority, examining each potential supervisory function under Section 2(11):

1. Hiring: The evidence was insufficient to establish that dive supervisors effectively recommend hiring. Their participation in interviews appeared routine, and there was no documentation showing their recommendations were followed.

2. Promotion: The Regional Director found insufficient evidence that dive supervisor Melo recommended diver Milford for promotion to dive supervisor. Rather, Melo merely reported Milford's application to Manager Gray, with Gray and VP Lyman independently interviewing and promoting her.

3. Assignment of work: The evidence showed dive supervisors prepare maintenance schedules and assign divers to work areas, but these appeared to be routine cleaning tasks not requiring independent judgment. There was no evidence about particular skills or criteria used in making assignments.

4. Discipline, suspension, and discharge: In the one documented disciplinary case, the Regional Director found that VP Lyman and HR initiated the investigation and dictated the supervisor's actions regarding an employee who was ultimately discharged.

5. Other supervisory indicia: The Director found no evidence dive supervisors were involved in transferring, laying off, or recalling employees. Evidence regarding authority to reward employees or adjust grievances was insufficient or nonexistent.

The Director also noted that while dive supervisors earned higher wages than divers, this secondary indicator alone was insufficient to establish supervisory status absent evidence of statutory supervisory functions.

Based on this analysis, the Regional Director determined that dive supervisors were not statutory supervisors under Section 2(11) but rather working lead persons. Accordingly, the Director included them in the appropriate bargaining unit and directed an election.

The decision established a bargaining unit of "All full-time and regular part-time associate divers, senior divers, dive supervisors (supervisors, water safety), dive safety officers, and dive technicians (gear technicians)" at the Discovery Cove and Aquatica parks, excluding all other employees, office clerical employees, professional employees, managerial employees, guards, and supervisors as defined by the Act.

The Director scheduled a manual election for May 6, 2025, and outlined procedures for voter eligibility, voter lists, and posting election notices.

Significant Cases Cited

• NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Established the three requirements for supervisory status under Section 2(11) of the Act.

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Defined "independent judgment" as requiring a degree of discretion that rises above routine or clerical functions.

• Brentwood Assisted Living Community, 355 NLRB No. 149 (2010): Established that Regional Directors can process representation cases under delegated authority despite Board lacking a quorum.

• Golden Crest Healthcare Center, 348 NLRB 727 (2006): Held that purely general and conclusory evidence is insufficient to establish supervisory status.

• J.C. Penney Corp., 347 NLRB 127 (2006): Found individuals do not effectively recommend hiring when acknowledged supervisors also interview candidates.