May 29, 2026|Franchise Frontlines
May 29, 2026 | National Labor Relations Board, Division of Judges (Seattle, Washington) | ALJ Decision JD-32-26 (2026 WL 1533120) — Recommended decision of an Administrative Law Judge; non-precedential unless adopted by the Board
Executive Summary
In a recommended decision of an Administrative Law Judge (Division of Judges, Case 19-CA-297589; JD-32-26), which is non-precedential unless and until adopted by the Board, Administrative Law Judge Renée D. McKinney dismissed in its entirety a consolidated complaint alleging that Starbucks Corporation violated the National Labor Relations Act during a union-organizing period at three downtown Seattle stores. The complaint, prosecuted by the NLRB General Counsel on charges filed by Workers United Labor Union International (affiliated with SEIU), advanced three theories: that Starbucks unlawfully solicited grievances and impliedly promised to remedy them at April 2022 “collaboration” sessions (Section 8(a)(1)); that a manager unlawfully interrogated an applicant about union activity during a Heritage Market job interview (Section 8(a)(1)); and that Starbucks created a new three-store “Heritage Market,” failed to re-hire roughly 29 of the 73 employees at the constituent stores, granted raises and benefits only to those hired, and constructively discharged those not selected, all to discourage organizing (Sections 8(a)(3) and (1)). Starbucks argued that the sessions continued a legitimate pre-existing feedback practice, that the interview question was a standardized script item, and that the General Counsel proved neither unlawful motive nor that the non-selected applicants met the elevated positions’ requirements. On this record the ALJ agreed with Starbucks on each theory, found the General Counsel failed to carry the burden under the controlling Board tests, dismissed the complaint in its entirety, and issued no remedial order.
Relevant Background
Starbucks Corporation operates more than 9,000 company-operated retail coffee stores nationally, organized into districts, regions, and areas. During 2021–2022, three company-operated stores near Seattle’s Pike Place Market — Pike Place (the original store), 1st & Pike, and 1st & University — sat within a single district. The record reflects that Workers United was organizing across the Seattle metro area during this period, that the Union filed and won several representation elections at nearby stores, and that organizing activity at the 1st & Pike store began in December 2021. The General Counsel consolidated charges arising from this activity into a single complaint advancing multiple distinct theories.
The first theory concerned two paid “collaboration” or “co-creation” sessions Starbucks held on April 18 and April 25, 2022, at which employees wrote feedback on prompts posted around the room; the General Counsel alleged these sessions solicited grievances with an implied promise to remedy them. The second theory concerned a June 2022 Heritage Market interview of Jo Cormier, a 5th & Pike barista and open union supporter, during which a management interviewer asked how she would handle a disagreement with the company; the General Counsel alleged coercive interrogation.
The central theory concerned the Heritage Market itself — a new three-store operation with “elevated” Heritage Barista and Heritage Shift Supervisor roles carrying higher pay and expanded requirements. A temporary regional vice president testified she alone conceived the reorganization after the April collaboration sessions and without personal knowledge of union activity at the stores. Current employees had to apply competitively for the new positions; Starbucks extended offers to 48 applicants (including three known union supporters — Skyler Blair, Whittaker Grant, and Tony Whatley), offered transfers to those not hired, and closed two stores temporarily. The General Counsel alleged that the failure to re-hire roughly 29 employees, the enhanced pay and benefits, and the resulting transfers were designed to retaliate against and discourage union activity. The matter was tried before ALJ McKinney, who issued the recommended decision addressed here.
Decision
Applying the governing Board tests, the ALJ found that the General Counsel failed to carry the burden on every theory. On the collaboration sessions, the ALJ observed that solicitation of grievances during a campaign is unlawful only where accompanied by an express or implied promise to remedy them (citing Albertson’s, LLC and Amptech, Inc.), and that the inference of a promise is “particularly compelling” only where the solicitation significantly deviates from existing practice (Center Service System Division). The ALJ found, on this record, that there was no established organizing campaign among Pike Place employees known to Starbucks on those dates, and that the sessions fit within Starbucks’ well-documented pre-existing practice of soliciting employee feedback — surveys, “skip level” meetings, road shows, town halls, and daily check-ins. Because an employer with a past practice of soliciting grievances “may continue that practice during a union’s organizing campaign” (Wal-Mart Stores; Longview Fibre), the ALJ found no 8(a)(1) violation.
On the alleged interrogation, the ALJ applied the totality-of-circumstances standard and the Bourne v. NLRB factors, as refined by Rossmore House, asking whether the questioning “reasonably tends to restrain, coerce, or interfere with” protected rights. Distinguishing Aloha Temporary Service, Inc., the ALJ found it “certainly not the ‘only reasonable inference’” that the interviewer was targeting the applicant’s union activity. The ALJ credited testimony that the disputed question was “materially the same” as a scripted item (“Tell me about a time when you had a different point of view from your team, manager, or organization”) drawn from existing Starbucks interview scripts and asked of multiple applicants, and concluded there was “no basis” to find the applicant would reasonably have believed the question probed union support.
On the Section 8(a)(3) theories, the ALJ applied the Wright Line mixed-motive framework, under which the General Counsel must first show union activity, employer knowledge, and antiunion animus. Although the ALJ found known union activity at 1st & Pike (imputed to Starbucks through a supervisor under Pinkerton’s), the ALJ found “insufficient evidence of animus” to establish that Starbucks created the Heritage Market to discourage organizing, so no prima facie case was made as to the reorganization. Notably, the ALJ rejected the General Counsel’s effort to infer animus from other unfair-labor-practice matters, explaining that the referenced Board cases did not involve the same actors as in Mid-Mountain Foods, and that the two cited ALJ decisions involving overlapping supervisors had not been affirmed by the Board and were “of course, non-precedential.”
On the failure-to-hire theory, the ALJ applied FES (A Division of Thermo Power), which requires the General Counsel to show that the applicants had experience or training relevant to the announced requirements (or that the requirements were pretextual). The ALJ detailed how the “elevated” Heritage Barista and Heritage Shift Supervisor descriptions differed substantially from the core roles — multi-store assignment, added experience and certification requirements, and physical requirements — and found that, beyond years of service, the General Counsel neither showed the non-selected applicants held those qualifications nor examined whether the selected applicants did (which might have shown pretext). Failing the second FES element ended the inquiry. The derivative wage-and-benefits and constructive-discharge theories fell with it; applying the traditional constructive-discharge standard (Yellow Ambulance Service) and analogizing to El Paso Natural Gas and San Antonio Portland Cement, the ALJ held that requiring employees to apply and interview for the reorganized roles — or transfer if unsuccessful — was not a condition so “unbearable” as to force resignation, and that employees who declined to apply “simply acted at their peril.” The ALJ dismissed the complaint in its entirety and issued no remedial order.
Looking Forward
This is a recommended decision of an Administrative Law Judge, not a Board decision; it carries roughly district-court-level weight and, as the ALJ herself noted about analogous rulings, remains non-precedential unless and until the Board adopts it. Read with that limit in mind, the outcome is a useful, defense-favorable illustration of how a disciplined employer defeated a stacked, multi-theory organizing complaint on failure of proof rather than on any novel doctrine. Because Starbucks organizing litigation is widely watched and its tactics tend to migrate to franchised and other branded multi-unit systems, the reasoning here may inform — though it does not control — how tribunals approach similar records elsewhere.
For franchisors, branded operators, and employers generally, the decision underscores the protective value of contemporaneous documentation and consistency. On this record, a genuine, pre-existing practice of soliciting employee feedback allowed the employer to characterize campaign-period listening sessions as continuation rather than unlawful grievance-solicitation; the lesson a defense-side reader may draw is that feedback mechanisms are safest when they predate any organizing and continue on unchanged terms, and that new promises made in reaction to a campaign are where exposure could arise. Likewise, the interrogation theory failed because the disputed question was traceable to a standardized script asked of many applicants — a reminder that uniform interview questions, hiring criteria, and manager talking points may help rebut an inference that a routine inquiry was a targeted probe. And on the discrimination theories, the employer prevailed in part because it could show that the new roles carried genuinely elevated, documented qualifications; where an employer restructures operations or creates higher-skill positions, defining and papering those requirements in advance and applying them consistently could blunt a later selection-discrimination claim.
The decision should not be over-read as a safe harbor. The ALJ was careful to tie each ruling to this record: no known campaign among the affected employees on the relevant dates, a longstanding feedback practice, a scripted interview question, an absence of animus proof, and unexamined qualification evidence. A different record — an active campaign known to the employer, new benefits promised in response to organizing, shifting explanations, or proof that stated qualifications were pretextual — could yield a different result, and a favorable ALJ recommendation can still be reversed or modified by the Board on exceptions. The practical takeaway for the defense side is that the General Counsel must prove animus, coercion, and qualification rather than infer them from timing, and that an employer’s best position is built before any dispute through consistent, business-driven, and well-documented decisions.
Thomas O’Connell is a Partner at Buchalter LLP and Chair of the firm’s Franchise Practice Group. For questions about this article or media inquiries, you can contact Tom at toconnell@buchalter.com.
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