08/29/2024: The Starbucks Dress Code Is Illegal
Ban on all graphic t-shirts violates the NLRA.
Starbucks Corporation, 373 NLRB No. 90, 18-CA-299560 (Published Board Decision)
On April 6, 2023, ALJ Andrew S. Gollin issued a decision regarding Starbucks Corporation, focusing on several allegations of unfair labor practices during a union organizing effort at Starbucks' Lyndale Avenue store in Minneapolis, Minnesota. The ALJ found that Starbucks, through its store manager Tim Renna, engaged in unlawful interrogation, made coercive statements equating union activity with disloyalty, and suggested potential negative consequences if employees unionized.
Key Findings by the ALJ:
Unlawful Interrogation: The ALJ found that Renna's questioning of employee Phoebe Dehring about her union activities and the number of employees involved was coercive and violated Section 8(a)(1). The interrogation was deemed unlawful because it was initiated by a high-ranking official without assurances against reprisals, focused on the union activities of other employees, and occurred in a context where the employee was not an open union supporter.
Coercive Statements: The ALJ concluded that Renna's statements during a text exchange, indicating that the employees' organizing activities caused a loss of trust, were unlawful. These statements were seen as equating union support with disloyalty, which the Board consistently holds as a violation of the Act.
Threats of Loss of Benefits: During a mandatory one-on-one meeting, Renna made several statements suggesting that unionization could lead to negative outcomes such as starting from scratch in negotiations, the imposition of union dues, and restrictions on employee transfers between union and non-union stores. The ALJ found these statements to be unlawful threats under Section 8(a)(1).
However, the ALJ dismissed the allegation that Renna's meeting constituted an unlawful "captive-audience" meeting under current Board law, which allows such meetings unless employees are explicitly threatened.
NLRB Decision
The NLRB reviewed the ALJ's decision and generally affirmed the findings but modified the remedy. The NLRB emphasized the following points:
Affirmation of Unlawful Interrogation: The Board agreed with the ALJ that Renna's interrogation of Dehring constituted a violation of Section 8(a)(1), particularly highlighting that the interrogation was coercive given the context and the lack of legitimate purpose behind the questions.
Coercive Nature of Text and Email Communications: The NLRB agreed that Renna's text messages to Dehring, where he expressed a loss of trust due to union activities, were coercive. Additionally, the Board upheld the finding that Renna's email to Dehring, in which he suggested that the employees were spreading misinformation, was a violation of the Act.
Remedial Modifications: The Board modified the ALJ's recommended order by amending the remedy in line with its decision in Paragon Systems, Inc., and ensuring that the notice posting requirements were consistent with the Board's standard practices. The NLRB also ordered Starbucks to mail a copy of the notice to the last known addresses of the affected employees, given that they no longer worked at the store.
Captive-Audience Meeting: The Board affirmed the ALJ's dismissal of the allegation that requiring Johnson to attend the meeting violated the Act, following Babcock & Wilcox Co., 77 NLRB 577 (1948) which allows employers to hold mandatory meetings to discuss unions. However, Chairman McFerran and Member Prouty expressed openness to reconsidering this precedent in a future case.
Significant Cases Cited
Rossmore House, 269 NLRB 1176 (1984): The Board reaffirmed the use of a totality-of-the-circumstances test to determine whether an employer's questioning of employees about union activities constitutes unlawful interrogation.
John W. Hancock, Jr., Inc., 337 NLRB 1223 (2002): Distinguished from the current case, this decision held that a supervisor's casual inquiry about the number of employees attending a union meeting in a large workplace was not unlawful because it did not solicit specific information about union support in a coercive manner.
Gissel Packing Co., 395 U.S. 575 (1969): This Supreme Court case was referenced in analyzing whether Renna's predictions about the consequences of unionization were lawful. The Court held that employer predictions about the effects of unionization must be based on objective facts and not imply that the employer might retaliate against employees.
Starbucks Corporation, JD-52-24, 10-CA-291616 (ALJ Decision)
This case involves several allegations against Starbucks Corporation by Workers United, Southern Regional Joint Board, concerning violations of Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act (NLRA). The allegations include coercive statements made by management, the maintenance of overly broad dress code provisions, threats of discipline related to these provisions, and unilateral changes to store hours without bargaining with the union.
1. Coercive Statements (Section 8(a)(1) Violation)
The ALJ examined whether Starbucks, through its managers, made coercive statements to employees that violated Section 8(a)(1) of the NLRA. The primary incident involved a manager, Bracher, who made comments to an employee, EM, implying that other employees were untrustworthy and could cause harm, especially since the union organizing drive began. Bracher’s statements were found to be coercive because they suggested negative consequences if employees engaged in union activities. The ALJ referenced Hialeah Hospital, 343 NLRB 391 (2004), where similar statements were held to convey that union activity equated to disloyalty, which was deemed a violation of the Act.
2. Dress Code Policy (Section 8(a)(1) Violation)
Starbucks maintained a dress code that limited employees to wearing only one union pin while allowing multiple Starbucks-issued pins. The ALJ ruled that the General Counsel was estopped from relitigating the legality of the "one pin rule" due to the prior ruling in NLRB v. Starbucks Corp., 679 F.3d 70 (2d Cir. 2012), where the court upheld Starbucks' right to impose such a restriction. However, the ALJ found that Starbucks’ broader dress code, which banned all graphic logos (including those supporting union activities), was overly broad and violated Section 8(a)(1). The ALJ applied the standard from Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), which balances employees’ rights to display union insignia against an employer’s need to maintain discipline. Starbucks failed to show that its policy was justified by any special business circumstances.
3. Unilateral Change in Store Hours (Section 8(a)(5) Violation)
The ALJ found that Starbucks unilaterally changed the store hours at its Merchant Drive location without giving the union notice or an opportunity to bargain, which violated Section 8(a)(5) of the Act. The ALJ rejected Starbucks' defense that such changes were a continuation of past practice, noting that the changes were discretionary and influenced by factors like safety concerns, rather than a regular and consistent past practice. The decision referenced NLRB v. Katz, 369 U.S. 736 (1962), which establishes that unilateral changes to terms and conditions of employment during bargaining are unlawful unless justified by a long-standing past practice.
Pratt & Whitney Company, Inc., 01-RC-338112 (Regional Election Decision)
This decision by NLRB Regional Director Laura A. Sacks dismisses a petition by the Uniform Professional Fire Fighters Association of Connecticut (Petitioner) to represent a unit of approximately 20 firefighters employed by Pratt & Whitney Company, Inc. The key issues and analysis are:
The firefighters are currently part of a larger bargaining unit including guards, represented by the UTC Independent Fire/Security Officers Association (Intervenor).
The main question is whether the firefighters are statutory guards under Section 9(b)(3) of the National Labor Relations Act. If they are guards, they cannot be represented by a non-guard union like the Petitioner.
The Regional Director analyzes whether recent changes to the firefighters' duties have removed their guard status. She finds that although some security duties were transferred to other employees in 2021, the firefighters still perform significant guard duties through their dispatch work.
Key aspects of the dispatch work that qualify as guard duties include:
Controlling access to company premises by operating a gate and monitoring turnstiles
Using radio to dispatch firefighters and security guards to incidents
Monitoring alarms and camera feeds
Responding to emergencies and rules violations
The Regional Director cites several key cases on guard status:
Burns Security Services, 300 NLRB 298 (1990) - Explained Congressional intent behind Section 9(b)(3) to prevent conflicts of interest.
The Boeing Company, 328 NLRB 128 (1999) - Described typical guard responsibilities.
Rhode Island Hospital, 313 NLRB 343 (1993) - Held that shuttle van drivers who monitored for security issues were guards.
Portland Museum of Art, 370 NLRB No. 113 (2021) - Found gallery ambassadors who monitored visitors and enforced rules were guards.
The Regional Director emphasizes that employees with mixed duties can be guards if a significant portion of their job involves guard duties, even if it's not the majority of their time.
She concludes that dispatch work remains a significant part of the firefighters' duties, and this work involves enforcing rules to protect company property and personnel. Therefore, the firefighters are statutory guards.
As guards, they cannot be represented by the Petitioner under Section 9(b)(3). The petition is dismissed.