What a Runaway Chipotle Means for Worker’s Rights

March 20, 2023 by Shiva M. Sethi* and Mark Gaston Pearce**

*Georgetown University Law Center, J.D. expected 2024; Research Assistant at the Worker’s Rights Institute; University of North Carolina at Chapel Hill, B.A. 2017.

**Executive Director of the Worker’s Rights Institute; National Labor Relations Board (NLRB) Chairman 2010-2018; State University of New York at Buffalo, J.D. 1978; Cornell University, B.A. 1975. We are deeply grateful to the staff of the Georgetown Journal on Poverty Law and Policy for their feedback and review. We are also thankful for Brishen Rogers, Jeffrey Young, and the workers who have fought so hard to organize workplaces across the nation. © 2023, Shiva M. Sethi & Mark Gaston Pearce.


I. Closing a Chipotle in Augusta, Maine

Last July, Chipotle abruptly announced that it was closing a store in Augusta, Maine. The Augusta Chipotle was special – it was the first store in the chain to attempt to unionize. Chipotle’s closure of the Augusta store fits into a pattern of how large businesses use partial closures to stifle organizing drives. This saga demonstrates the inadequacy of modern procedures and remedies for violations of labor law.

Chipotle is a ubiquitous restaurant chain with nearly 3,000 locations and $8.63 billion in annual sales. It employs nearly 100,000 workers whose starting pay ranges between $11-18 per hour.[1] Chipotle closed ten U.S. stores in the first half of 2021 and one store in the nine months before March 31, 2022.[2]

Before deciding to unionize, the Augusta workers had walked off the job, protesting unsafe working conditions including understaffing, excessive hours, orders to falsify work records, and more.[3] In response, the company closed the store for safety training. Later that month, most workers at the store signed union cards and they informed management of their intent to unionize, officially beginning the union election process.[4]

Chipotle closed the Augusta store hours before the store’s workers were scheduled to have a National Labor Relations Board (NLRB) hearing about their election. Chipotle did not offer to transfer Augusta workers to other Chipotles, but it gave them severance and offered to help them find work elsewhere.[5] The company explained that it was closing the store because of excessive staff absences.[6]

In August, the Augusta workers discovered that Chipotle was hiring workers for another location 45 minutes away in Auburn, Maine.[7] When the Augusta workers tried to apply to the Auburn store, they found that the company had locked them out from using the email addresses that the company had on file.[8] One of the leaders of the Augusta organizing drive, Brandi McNease, filled out an application using a different email address. The Auburn store scheduled an interview with her the next day.

Before McNease interviewed, the Auburn manager called her. She told McNease that the regional manager, Jarolin Maldonado, had told her not to interview McNease because she had attendance problems in the past.[9] McNease had never been disciplined for attendance issues. The store manager also said that she didn’t know “you were part of that group.”[10] McNease said that the same regional manager had told her that she was eligible to be rehired when Chipotle closed the Augusta store. This suggests that, contrary to Chipotle’s stated reasons for closing the Augusta store, the closure was motivated by illegal anti-union animus. The Augusta store was closed in order to remove and exclude pro-union employees.


II. Historical and Legal Context for Closures in Response to Organizing

U.S. labor law grants employers the absolute right to completely shut down explicitly because of union opposition. However, employers who operate multiple locations cannot partially close one location to discourage workers from unionizing in other locations—a practice referred to as a partial closure. Courts frequently struggle to distinguish between lawful and unlawful motives in partial closure cases. When Jones & Laughlin affirmed the constitutionality of the NLRA in 1937, the Court held the Act was constitutional partly was because it imposed limited restrictions on employer power.[11] Since that case, courts have struggled to define where employee rights end and where employer rights begin. The tension between employees’ labor rights and employers’ nebulous economic rights echoes throughout labor law.

The canonical partial closure case is Darlington Manufacturing.[12] Darlington was one of several textile mills owned by the Milliken family.[13] In March 1956, a union began organizing workers at the Darlington mill in South Carolina. [14] During the organizing drive, the employer threatened to close the mill if the union won.[15] In September, the union won and six days later, the company’s board voted to liquidate the mill. Over 500 workers lost their jobs and the plant closed in November.[16] The NLRB concluded that the mill was closed because of the company’s anti-union animus in violation of Section 8(a)(3) of the National Labor Relations Act.[17] The Supreme Court unanimously affirmed the Board.

The Court distinguished between closing a business entirely and shutting down part of a business for an anti-union purpose.[18] The Court wrote, “a partial closing is an unfair labor practice… [violating the NLRA] if motivated by a purpose to chill unionism in any of the remaining plants of the single employer and if the employer may reasonable have foreseen that such closing would likely have that effect.”.[19] This chilling effect analysis contrasts with other labor law tests which focus on the adverse effect of an employer’s actions on the employees who were directly affected.[20] The court instructed the NLRB to make findings about the purpose and effect of closing the mill on the employers’ employees at other locations. On remand, the NLRB ruled for the union.[21]

Subsequent cases have clarified Darlington’s rule. Employers who partially close or divert work because of any reason besides anti-union animus such as technological change or economic reasons do not violate the law. In 1982, the Eleventh Circuit held that a manufacturer that shut down one of its plants two weeks after a union won an election there did not violate the NLRA because the closure was for economic reasons including declining demand for the employer’s product.[22] In 2000, two weeks after meat cutters in a Texas Walmart voted to unionize, Walmart announced it was ending ‘meat cutting operations’ and transitioning to selling pre-packaged meat.[23] The D.C. Circuit held this partial closure was not illegal since it was motivated by technological change.[24]

Employers are more likely to be found liable in Darlington partial closure cases when they do not have evidence of a pre-existing plan to partially close and the circumstances provide sufficient evidence of anti-union motive. In Purolater Armored, the employer explained its partial closure by blaming the store’s lack of profitability. The Eleventh Circuit held the closure was illegal because it was announced a week after the union won its election, the employer had demonstrated anti-union animus during the campaign, and the store had long been unprofitable.[25] Similarly, in in re Chariot, the Board held an employer illegally partially closed because there was no pre-existing closure plan before the union activity, the employer’s campaign threats demonstrated anti-union animus, and they treated organizing employees differently from other employees.[26] In 2009, Boeing relocated business from a unionized plant in Washington to a non-unionized plant in South Carolina, affecting approximately 1,000 jobs.[27] A Boeing executive blamed the transfer on “strikes happening every three to four years in Puget Sound [the unionized plant]”.[28] The NLRB alleged that Boeing had illegally diverted the work due to anti-union animus, and sought to reverse the transfer.[29] Boeing and the union settled.[30] The line between legal and illegal motivations for a partial closure is blurry, partly because one of the major reasons employers oppose unions is because they often increase labor costs, a paradigmatic ‘economic reason’.

Chipotle is not the only employer that has been recently accused of Darlington-like tactics. Workers allege that Trader Joe’s closed a store in response to an organizing effort there in August 2022.[31] The same month, Starbucks closed two unionized stores. The union, Starbucks Workers United (SWU), accused management of closing the stores as retaliation for organizing, alleging that forty-two percent of recently closed stores had union activity.[32] Starbucks blamed the closure of profitable stores on safety.[33] Starbucks’ CEO, stated “there are going to be many more”. [34] Ironically, the safety concerns that prompted some workers to organize are being used by management to justify store closures.


III. Next Steps for the Augusta Workers

The Augusta workers have a strong Darlington claim but they may not receive all the remedies they seek even if a court finds Chipotle broke the law. The workers filed an unfair labor practice charge with the NLRB and in November 2022, the NLRB issued a sweeping complaint seeking several remedies including reopening the Augusta store, reinstating employees with back pay, and forcing Chipotle to recognize and bargain with the union.[35] The Board may also seek injunctive relief which would temporarily reinstate the workers while their cases are pending.[36] The case will likely be heard by an Administrative Law Judge in Spring 2023 whose decision can be appealed to the NLRB. If the Board rules in favor of the employees, the Board must petition a Court of Appeals for enforcement.[37]

Chipotle’s blatant behavior likely prompted the NLRB to seek the boldest available remedy – forcing Chipotle to reopen the Augusta store. This remedy is rare, but not unprecedented. Even when Courts find Darlington violations, they sometimes resist forcing employers to reopen closed facilities if such a reopening might threaten the business’ viability.[38] More common remedies include reinstatement, backpay and notice posting. If the workers are awarded backpay, their award will be decreased by their interim earnings between when they lost their jobs and when they received the award. Punitive damages are unavailable and undocumented immigrants cannot receive backpay at all.[39]

NLRB General Counsel Abruzzo has encouraged the Board to take a more progressive approach than it has in the past. She said, “[the NLRB must] utilize every possible tool we have to ensure that those wronged by unlawful conduct obtain true justice. To do this, we need to examine all of the ways that workers have been hurt by unfair labor practices and seek remedies that will fully address them.” [40] The Chipotle case is an opportunity to clarify an opaque area of law in a high-profile case.

Since NLRB orders must be enforced by a federal court, they can be denied by a federal judge with a restrictive view of the Board’s authority. Previous efforts by the Board to strengthen the Act have been halted by federal courts.[41] Courts have generally been deferential to federal agencies, but this may be changing.[42] In West Virginia v. EPA the Supreme Court stated, “our precedent teaches that there are ‘extraordinary cases’ that call for a different approach—cases in which the ‘history and the breadth of the authority that [the agency] has asserted,’ and the ‘economic and political significance’ of that assertion, provide a ‘reason to hesitate before concluding that Congress’ meant to confer such authority.”.[43] This suggests that courts will be increasingly skeptical of assertions of authority by agencies like the NLRB.


IV. Broader Considerations

The surge in organizing has been met with an anti-union backlash from employers.[44] Closing a store in response to an organizing drive is a potent tactic for chilling organizing drives in national chains. When employers use these tactics, the NLRB must fight vigorously to hold them accountable. Policymakers must take action to strengthen the NLRB, and to clarify its remedies and penalties to ensure compliance.

The nationwide unionization wave has spread to several chains that might consider adopting Darlington tactics. Companies like Trader Joe’s, Starbucks, and Apple  are so profitable that they can afford to close branches to stop an organizing drive in its tracks.[45] Of course, management does not have to oppose organizing. In recent months several prominent employers including Condé Nast, Microsoft, and the MLB voluntarily recognized unions.[46]

Policymakers must ensure the NLRB has the resources to enforce the law in a timely and effective manner. In Darlington, the NLRB directed the employer to pay backpay rather than reopening the plant. The matter was settled fifteen years after the Supreme Court case, when the company paid millions to the workers and their estates.[47] Injunctive relief should be a default option in these cases since delay benefits the employer—bills do not wait for NLRB adjudications and employees must meet their basic needs while they wait for their rights to be enforced. Defunding the NLRB has exacerbated the agency’s delays; until the 2022 omnibus, the NLRB’s funding had been stagnant since 2014.[48] Refusals to adequately fund the NLRB had forced the Board to reduce its staffing levels by thirty-nine percent in the preceding twenty years.[49]

Legislators should rework the Darlington analysis. The Darlington line of cases determine liability by evaluating the chilling effect of the partial closure upon the employees who were not directly affected by the closure.[50] This approach contrasts with how other NLRA cases are decided.[51] Courts should focus their analysis on the employer’s interference with the collective bargaining rights of the workers in the closed plant itself. Further, legislators should clarify the standard for evaluating partial closure cases, specifically distinguishing between permissible and impermissible economic motivations.

Legislative change is needed, but workers are not waiting for it. In August 2022, workers at a Chipotle in Michigan voted to unionize, becoming the first unionized Chipotle.[52] The fight to organize Chipotle workers continues.



[1] Chipotle Mexican Grill Annual Report (Form 10-K) (Feb. 11, 2022); Chipotle Increases Wages Resulting in $15 Per Hour Average Wage and Provides Path of Six Figure Compensation in ~3 Years. Chipotle Mexican Grill (May 10, 2021) https://newsroom.chipotle.com/2021-05-10-Chipotle-Increases-Wages-Resulting-In-15-Per-Hour-Average-Wage-And-Provides-Path-To-Six-Figure-Compensation-In-~3-Years.

[2] Sarah Todd, Are Starbucks and Chipotle Union Busting by Closing Stores?, Quartz (July 27, 2022), https://qz.com/2191767/are-starbucks-and-chipotle-union-busting-by-closing-stores/.

[3] Keith Edwards, Augusta Chipotle Restaurant Workers May be First in Nation to Unionize Following Health, Labor Concerns, CentralMaine.com (June 22, 2022); https://www.centralmaine.com/2022/06/22/augusta-chipotle-workers-decide-to-unionize/.

[4] Keith Edwards, Augusta Chipotle Workers Walkout, Claim Unsafe Conditions Due to Understaffing, CentralMaine.com (June 17, 2022) https://www.centralmaine.com/2022/06/16/augusta-chipotle-workers-walk-out-claim-unsafe-conditions-due-to-understaffing/.

[5] Andy O’Brien, Chipotle Blacklists Maine Workers Who Tried to Unionize, Union Filed NLRB Complaint, Maine AFL-CIO (Aug. 11, 2022), https://maineaflcio.org/news/chipotle-blacklists-maine-workers-who-tried-unionize-union-files-nlrb-complaint.

[6] Dee-Ann Durbin, Chipotle closes store in Maine, thwarting union efforts, Associated Press, (July 19, 2022), https://apnews.com/article/maine-augusta-national-labor-relations-board-cfcb6a5da7be0cbac088bb2b9549436e.

[7] O’Brien, supra note 5; As of February 2023, this hiring advertisement was still posted online. Restaurant Team Member – Crew (3286 – Auburn Center Street), Chipotle (2022) Retrieved from https://jobs.chipotle.com/job/auburn/restaurant-team-member-crew-3826-auburn-center-street/282/44077440272?.

[8] O’Brien, supra note 5.

[9] Id.

[10] Meaghan Bellavance, Chipotle reportedly blacklists Augusta employees who filed to unionize, News Ctr. Me. (Nov. 3, 2022 11:24 PM) https://www.newscentermaine.com/article/money/business/chipotle-blacklists-augusta-maine-employees-who-filed-for-union-food-business/97-ed587a53-0828-425a-8922-7585a579b341.

[11] NLRB. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45-6 (1937).

[12] Textile Workers Union of America v. Darlington Mfg. Co., 380 U.S. 263, 265-275 (1965).

[13] Id. at 275.

[14] Id. at 265-66.

[15] Id. at 266.

[16] Barry Winograd, Principles in Collision: The Right of Workers to Unionize v. the Right of an Employer to Close the Business, IUS Labor, 2007, at 1. https://www.raco.cat/index.php/IUSLabor/article/download/72326/82562/.

[17] This section is now 29 U.S.C.A. § 158(a)(3).

[18] Darlington, 380 U.S. at 272.

[19] Id. at 275.

[20] Eastex, Inc. v. NLRB., 437 U.S. 556, 565-67 (1978) (holding that employee distribution of political speech was protected under the NLRA because it related to the aggrieved employees’ employment); Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801-5 (1945) (holding that non-work time bans on solicitation violated the NLRA because of the adverse effect on Republic Aviation’s employees’ rights).

[21] Darlington Mfg. Co. v. NLRB, 397 F.2d 760 (4th Cir. 1968).

[22] Weather Tamer, Inc. v. NLRB, 676 F.2d 483, 493 (11th Cir. 1982).

[23] Frank Swoboda, Wal-Mart Ends Meat Cutting Jobs, Wash. Post, (Mar. 4, 2000), https://www.washingtonpost.com/archive/business/2000/03/04/wal-mart-ends-meat-cutting-jobs/acdb8f7c-d7c2-4e31-aad7-8f690ba3b35b/.

[24] UFCW Local 540 v. NLRB, 519 F.3d 490, 493-97 (D.C. Cir. 2008). The Court also held that Walmart had violated its duty to bargain.

[25] Purolator Armored, Inc. v. NLRB, 764 F.2d 1423, 1427-1431 (11th Cir. 1985).

[26] In re Chariot Marine Fabricators & Indus. Corp., 335 NLRB 339, 352-54 (2001).

[27] Steven Greenhouse, Labor Board Tells Boeing New Factory Breaks Law, N.Y. Times (Apr. 20, 2011), https://www.nytimes.com/2011/04/21/business/21boeing.html.

[28] Joshua Freed, Boeing Accused Of Retaliating Against Union After Strike, Industrial Distribution, (Apr. 21, 2011), https://www.inddist.com/home/news/13765748/boeing-accused-of-retaliating-against-union-after-strike.

[29] National Labor Relations Board, Boeing Documents, https://www.nlrb.gov/news-publications/publications/fact-sheets/fact-sheet-archives/boeing-complaint-fact-sheet/boeing (last visited Feb. 28, 2023); see also Complaint and Notice of Hearing, Boeing and IAM, Case 19-CA-32431, at 5, https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-3310/cpt_19-ca-032431_boeing__4-20-2011_complaint_and_not_hrg.pdf.

[30] Steven Greenhouse, Labor Board Drops Case Against Boeing After Union Reaches Accord, N.Y. Times (Dec. 9 2011), https://www.nytimes.com/2011/12/10/business/labor-board-drops-case-against-boeing.html; Senator Graham had threatened the NLRB with “very, very nasty” consequences if the NLRB filed the complaint. The NLRB filed it anyway. Kevin Bogardus, Senator threatened labor board before Boeing complaint, The Hill (Nov. 9 2011, 10:17 PM), https://thehill.com/business-a-lobbying/178240-senator-threatened-labor-board-before-boeing-complaint/.

[31] Dave Jamieson, Trader Joe’s Workers Decided to Unionize. The Company Abruptly Closed Their Store., Huffington Post (Aug. 17 2022, 8:42 PM), https://www.huffpost.com/entry/trader-joes-wine-shop-closed-union_n_62fd72cce4b071ea958c5b35.

[32] Hilary Russ, Starbucks union claims company closed two cafes in retaliation, Reuters (Aug. 23, 2022, 3:47 PM), https://www.reuters.com/business/retail-consumer/starbucks-workers-union-claims-retaliation-closing-two-cafes-2022-08-23/.

[33] Id.

[34] Allison Nicole Smith, Starbucks CEO Howard Schultz says more stores to close for security reasons, Seattle Times (July 19, 2022, 3:28 PM), https://www.seattletimes.com/business/starbucks/starbucks-ceo-howard-schultz-says-more-stores-to-close-for-security-reasons/.

[35] Order Consolidating Cases, Consolidated Complaint and Notice of Hearing at 3–4, Chipotle Mexican Grill and Chipotle United, 01-CA-299617, (Ordered Nov. 4 2022); see also Beverly Banks, NLRB Attys Say Chipotle Closure Amid Organizing Was Illegal, Law360 (Nov. 4 2022, 3:38 PM), https://www.law360.com/employment-authority/articles/1546598/nlrb-attys-say-chipotle-closure-amid-organizing-was-illegal.

[36] 29 U.S.C. § 160(j) (commonly referred to as 10(j) injunctions) provides for such relief.

[37] The parties can also decide to settle at any point during this process.

[38] Lear Siegler, Inc., 295 NLRB 857, 861 (1989) (holding that to order restoration of a closed operation, the Board must demonstrate that such an order would not be “unduly burdensome” or endanger “the respondent’s continued viability”; In re Chariot Marine Fabricators & Indus. Corp., 335 NLRB at 356-58 (2001) (rejecting a reopening order in favor of a make-whole remedy because reopening would be unduly burdensome on the employer).

[39] Republic Steel Corp. v. NLRB, 311 U.S. 7, 11-12 (1940); Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 150-52 (2002).

[40] NLRB General Counsel Jennifer Abruzzo Issues Memo on Seeking all Available Remedies to Fully Address Unlawful Conduct, NLRB (Sept. 8 2021), https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-seeking-all-available.

[41] Nat’l. Ass’n of Mfrs. v. NLRB, 717 F.3d 947, 949-953, 967-970 (D.C. Cir. 2013), overruled by Am. Meat Inst. v. U.S. Dept. of Agric., 760 F.3d 18 (D.C. Cir. 2014) (overruled on other grounds).

[42] Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–45 (1984).

[43] W.Va. v. EPA, 142 S. Ct. 2587, 2595 (2022)..

[44] Correction: First Three Quarters’ Union Election Petitions Up 58%, Exceeding all FY21 Petitions Filed, NLRB (July 15 2022), https://www.nlrb.gov/news-outreach/news-story/correction-first-three-quarters-union-election-petitions-up-58-exceeding; Eli M. Rosenberg, As major companies shut down stores with active union drives, workers file more complaints of retaliation, NBC News (Nov. 2, 2022), 11:42 AM, https://www.nbcnews.com/business/corporations/worker-complaints-alleging-anti-union-shutdowns-surge-organizing-rcna55057.

[45] Michael Sainato, Mass firings, wage cuts and open hostility: workers are still unionizing despite obstacles, Guardian (Sept. 13 2022, 5:00 PM), https://www.theguardian.com/us-news/2022/sep/13/unions-starbucks-trader-joes-chipotle-petco; Doyinsola Oladipo, Apple workers vote to unionize second U.S. store, Reuters (Oct. 17, 2022, 1:13 PM) https://www.reuters.com/markets/us/apple-workers-vote-unionizing-second-us-store-2022-10-15/.

[46] Elahe Izadi, Condé Nast workers win recognition of company-wide union, Wash. Post (Sept. 9 2022, 5:23 PM), https://www.washingtonpost.com/media/2022/09/09/conde-nast-union/; Héctor Alejandro Arzate, Video Game Testers From Rockville Form Microsoft’s First Union, DCist (Jan. 4 2023, 2:11 PM), https://dcist.com/story/23/01/04/md-microsoft-union-video-game/; James Wagner, M.L.B. Will Voluntarily Recognize Minor League Union, N.Y. Times (Sept. 9 2022), https://www.nytimes.com/2022/09/09/sports/baseball/minor-league-union.html.

[47] See Winograd, supra note 16 at 3.

[48] Gay Semel, Viewpoint: The NLRB is Underfunded and Understaffed –And That’s a Big Threat to the Current Organizing Wave, Labor Notes, (July 6 2022), https://labornotes.org/2022/07/viewpoint-nlrb-underfunded-and-understaffed; Daniel Wiessner, U.S. budget bill includes first increase for labor board since 2014, Reuters, (Dec. 20 2022, 1:34 PM), https://www.reuters.com/legal/government/us-budget-bill-includes-first-increase-labor-board-since-2014-2022-12-20/.

[49] Letter from Sen. Casey to Chair Murray and Ranking Member Blunt, S. HELP Comm., (May 10, 2022), https://www.casey.senate.gov/download/letter-to-appropriations-labor-subcommittee-on-nlrb-funding.

[50] Darlington, 380 U.S. at 275.

[51] Eastex, 437 U.S. at 565-67; Republic Aviation, 324 U.S. at 801-5.

[52] Lauren Kaori Gurley, Michigan Chipotle outlet the chain’s first to unionize, Wash. Post (Aug. 25 2022, 6:57 PM), https://www.washingtonpost.com/business/2022/08/25/chipotle-union-victory-fastfood-michigan/.