Labor & Employment Law Daily Wrap Up, LABOR—UNFIAR LABOR PRACTICES—NLRB: Existing Board precedent barred finding that Starbucks disciplined employee without union notice, (Mar 31, 2025)

By Ronald Miller, J.D.

The question of whether NLRB precedent as set forth in Care One should be overruled had to be addressed by the Board, and ALJs were required to apply existing Board precedent.

A three-member panel of the NLRB affirmed an administrative law judge’s dismissal of a complaint allegation that Starbucks violated Section 8(a)(5) and (1) by failing to provide notice and opportunity to bargain over a decision to discipline an employee. However, the Board adopted the ALJ’s finding that Starbucks violated Section 8(a)(1) by threatening a pro-union employee with store closure if employees voted for the union. On the other hand, Starbucks did not violate Section 8(a)(3) and (1) by reducing the pro-union employee’s hours and causing his termination (Starbucks Corp., 374 N.L.R.B. No. 23 (Mar. 27, 2025)).

In mid-March 2022, a union filed a petition with the NLRB for a representation election among the baristas and “shift supervisors” employed at a Starbucks store in downtown Los Angeles. The election was conducted in May and a majority of the ballots were cast in favor of the union. Thereafter, the union was certified as the bargaining representative of unit employees.

Unfair labor practices. A complaint alleged that Starbucks committed four unfair labor practices at the store before, during, or after these events. First, it was alleged that the store manager unlawfully told an openly pro-union employee that the store could close if the employees voted for the union. Second, it alleged Starbucks unlawfully began reducing and limiting the pro-union employee’s work hours because he supported the union. Third, it alleged that on June 12, Starbucks unlawfully terminated his employment. Fourth, it alleged that Starbucks unlawfully disciplined another employee without providing the union with prior notice or an opportunity to bargain over the discipline and its effects.

Reduction in hours. With respect to the pro-union employee, the complaint alleged that beginning in March, Starbucks unlawfully “reduced and limited” his work hours because he supported unionizing the store. Assignments were based primarily on two factors. The first was the store’s business needs. The second factor was employee availability. Here, the evidence indicated that aside from the week of March 28–April 3, when the employee’s scheduled hours were at a three-month low, his scheduled hours were within his normal range. Thus, the evidence showed that his scheduled hours were actually reduced for at most one week. Accordingly, the allegation was dismissed.

Constructive discharge. It was also alleged that by reducing the employee’s work hours, Starbucks unlawfully caused his termination. Specifically, the allegation was that by unlawfully reducing and limiting the employee’s hours, Starbucks set in motion a series of events that eventually led and forced him to resign his employment.

To establish a traditional constructive discharge, the General Counsel must prove both that the burden imposed on the employee caused, and was intended to cause, a change in working conditions so difficult or unpleasant as to force the employee to resign, and that the burden was imposed because of the employee’s union or protected concerted activity. Here, the General Counsel failed to prove that the reduction in the employee’s hours was either protracted or motivated by his support for unionization. Thus, as a matter of law, the reduction in hours could not have led to his alleged constructive discharge.

Moreover, in order to establish that Starbucks failure or refusal to grant the employee’s requests to reduce his availability because of his new full-time job led to his constructive discharge, the General Counsel was required to prove that it independently satisfied both requirements of a traditional constructive discharge. The General Counsel proved the first since the employee could not have continued working with the same availability on weekdays if he was working full time weekdays elsewhere, and Starbucks therefore knew or reasonably should have foreseen that denying his request to work only on weekends would force him to quit.

However, the General Counsel failed to prove the second requirement—that the failure or refusal to approve the employee’s availability request was motivated by his support for unionization. While there was sufficient evidence the employee supported unionizing the store, and that Starbucks knew this and had animus against unionization, the record failed to support an inference that the employer’s denial of his request to reduce his availability was motivated by his support for unionization. Accordingly, the constructive discharge allegation was be dismissed.

Unilateral discipline. Finally, the General Counsel alleged that after the union’s certification but before the parties reached an initial contract, Starbucks issued a final written warning under its discretionary progressive disciplinary policy to another employee for walking off a shift. The General Counsel alleged that this was unlawful, not because it was motivated by union activity in violation of Section 8(a)(3) of the Act, but because Starbucks did not give the union prior notice and an opportunity to bargain over the discipline and its effects in violation of Section 8(a)(5).

Here, the ALJ concluded that Starbucks did not violate Section 8(a)(5) based on the facts under extant Board precedent, specifically Care One at New Milford, 369 NLRB No. 109 (2020). Rather, the sole disputed issue was whether Care One should be overruled. The ALJ observed that the dispute whether Care One should be overruled had to be addressed by the Board. ALJs are required to apply existing Board precedent. Accordingly, consistent with Care One, the ALJ dismissed the allegation.

The slip opinion is 374 NLRB No. 23.

Attorneys: Lisa E. McNeill for General Counsel. Arrissa K. Meyer (Littler Mendelson) for Starbucks Corporation. Robert S. Giolito for Workers United.

Companies: Starbucks Corporation; Workers United

Cases: Labor UnfairLaborPractices OrganizingElections Discharge AgencyNews