Compass Union Vote Puts Practice of ‘Unit Packing’ to the Test

A union dispute at a popular Washington, D.C., coffee chain is poised to more clearly define the legal boundary for employers’ ability to influence the pool of employee voters before an election.

The fate of proposed unions at five Compass Coffee shops remains unresolved in the wake of votes cast July 16, with union organizers challenging about 100 ballots they say were cast by illegitimate workers. The union accused Compass of rapidly hiring employees to dilute union support, doubling and in some cases tripling staff size.

And the hires included some perplexing names, including an Uber Technologies Inc. corporate manager and executives of several Washington-based food service companies.

The clash escalates a well-worn yet legally ambiguous tactic where employers, and in some cases unions, try to win an election by adding or subtracting from the pool of eligible voters.

“I’ve seen cases where it’s a few people here and there to shore up what the employer thinks are votes in their favor, but not in dramatic numbers like this,” said Thomas Lenz, a management-side attorney for Atkinson, Andelson, Loya, Ruud & Romo.

Lenz described the practice as “unit packing,” and said companies like Compass could face legal repercussions if they’re not careful. Under federal labor law, employers are largely prohibited from changing working conditions while a union vote is pending.

While businesses like Compass go through natural hiring cycles, “they would need to show that there’s some sort of pre-existing plan for growth or some other justifiable business reason for the hires” for the move to pass legal muster, Lenz said.

Compass didn’t respond to multiple requests for comment.

Established Practice

Altering the population of eligible voters ahead of union elections isn’t new. Employers and unions both try to shape bargaining units in their favor, and such matters are often settled in pre-election hearings before the National Labor Relations Board.

In 2020, Amazon.com Inc. fought with the Retail, Wholesale and Department Store Union over the size of a proposed bargaining unit at its warehouse in Bessemer, Alabama. The NLRB ultimately agreed to increase the size of the unit from 1,500 to nearly 6,000 workers as Amazon wanted.

The union lost badly in the election in 2021, but the labor board later tossed the outcome over alleged tampering by Amazon. The administrative case over a second election remains pending.

Starbucks Corp. workers faced similar opposition when they tried to organize the first stores in Buffalo, N.Y., in 2021, said Richard Bensinger, a former AFL-CIO organizing director who spearheaded the effort.

In one instance, the coffee giant closed a store with high union support among the staff, turning it into a training center and transferring the employees to other stores. An NLRB administrative law judge later found that the move violated the workers’ rights, in part because they were given fewer hours and tip opportunities at the new stores.

The judge found that Starbucks engaged in a pattern of “egregious and widespread misconduct” that included overstaffing stores with upcoming union votes. He cited Einhorn Enterprises, Inc., a 1986 board decision holding that an employer’s attempt to “pack the unit” amounted to unlawful election interference.

“It’s not Democratic—it’s a type of voter fraud, and an attempt to stack the deck,” Bensinger said.

But the NLRB, pushed in part by General Counsel Jennifer Abruzzo, has changed its policies to make it easier to resolve election-based disputes amid a surge of unionization drives. New regulations have sped up the time for the agency’s regional offices to conduct elections by eliminating waiting periods and pushing questions of voter eligibility until after the ballot count.

The board also altered its framework for policing alleged legal violations before an election in its 2023 decision in Cemex Construction Materials Pacific, LLC. The new precedent requires that employers either voluntarily recognize a union or file election petitions with the NLRB when unions come to them with proof of majority employee support. It also lowers the bar for the board to issue a bargaining order to remedy unlawful behavior.

Hired, But Not Working

Sorting out unit-packing cases can take a long time. In 2021, Nissan Motor Co. Ltd. insisted on adding more than 4,000 workers to a proposed unit that was intended for several dozen tool and die workers. After two years of legal wrangling, the labor board rejected Nissan’s argument, saying the smaller group consisted of highly skilled employees separate from the rest of the plant.

The International Association of Machinists, the union organizing the employees, said the delay had a chilling effect. Workers rejected the union in a 62-9 vote.

At Compass, the list of new employees included Tizzy Brown, a Washington-based federal affairs manager for Uber. Compass also brought on Elena Rosenblum and Cullen Gilchrist, top executives at food business accelerator Union Kitchen; Grant Sarvis, the CEO and founder of Poppy’s Bagels; and Graham McLaughlin, the president of Snacklins chip company, according to the union.

Brown said in an email she attended a single training session at Compass in June, signing the same new-hire paperwork as the rest of the group.

“I never worked a shift beyond that initial training, and as soon as this all came to light I reached out to Compass and asked to be removed from their employee system,” she said.

Rosenblum, Gilchrist, Sarvis, and McLaughlin didn’t respond to requests for comment.

Michael Fischl, labor law professor at the University of Connecticut, said the union could file objections to this week’s elections or seek a bargaining order through unfair labor practice charges. The union already filed a ULP charge ahead of the vote on June 6, alleging unlawful discipline, coercive rules, and changes of the terms and conditions of employment.

“It’s not too much of a stretch to make the claim that this has interfered with the workers’ rights to freely organize,” Fischl said. “To saddle the workers with a bunch of new colleagues who don’t really work there only so they can vote against the union seems like a one way ticket to a bargaining order to me.”