Did Aramark Violate the NLRA by Telling Oakland A's Concession Workers Not to Talk to Press?

Yes. They also failed to adequately repudiate it.

According to Connor Letourneau at the San Francisco Chronicle, Aramark recently sent a letter threatening to terminate Oakland A’s concession workers if they talk to the press:

The 99-word letter from global concession giant Aramark, obtained by the Chronicle, told workers that “it is against Aramark’s Business Conduct Policy to speak to the government, media, or press on behalf of the company, and/or comment on Aramark/Client business matters. This includes reporters, written responses, phone calls, video calls, social media, and any other forms of communication.” The letter went on to tell workers to direct any inquiries to management, stating that “violations of this policy are subject to disciplinary action up to and including termination.”

The ostensible reason for this warning is that Aramark does not want its concession stand workers criticizing the Oakland A’s for moving the team to Sacramento next season, a decision that will result in mass layoffs for concession stand workers.

In Board law, this is called a “media contact rule.” It is clearly illegal under the Board’s current standard for evaluating coercive rules (Stericycle). For a recent administrative law judge case applying Stericycle to a media contact rule, see Big Green. The Board even held, in Tesla, that a media contact rule worded like the one Aramark is using violated the prior standard for evaluating coercive rules (Boeing).

The reason this kind of rule violates the NLRA is because employees have a right under Section 7 to talk to the press about working conditions so long as they do so in a concerted way. But an employee who read this rule would reasonably interpret it as forbidding them to do so.

Failed Repudiation

Three days after sending the offending letter, Aramark apparently got some advice from its lawyers and attempted to walk back what they said:

Aramark, which has run the Coliseum’s concession stands since 2019, followed up with a statement Monday afternoon. “Like many employers, only company-authorized spokespeople are permitted to speak on behalf of Aramark to the media,” the company said. “However, nothing prohibits employees from speaking to members of the government or media, posting on social media, or engaging in other forms of communication on their own behalf.”

It is legal to forbid workers from speaking “on behalf” of the company to the media and so this clarified rule from Aramark does not itself violate the NLRA. But does this subsequent clarification mean that Aramark is off the hook for its earlier letter? If a company makes a coercive statement or rule and then walks it back, can you file an unfair labor practice charge against them and still prevail?

It depends on how exactly the company walked back the initial unfair labor practice. The Board law, from Passavant and more recently Lytton Rancheria, lays out the necessary conditions for an employer to adequately repudiate a prior unfair labor practice:

In order for a repudiation to serve as a defense to an unfair labor practice finding, it must be timely, unambiguous, specific in nature to the coercive conduct, and untainted by other unlawful conduct. In addition, there must be adequate publication of the repudiation to the employees involved, and the repudiation must assure employees that, going forward, the employer will not interfere with the exercise of their Section 7 rights.

For a recent case applying Passavant and Lytton Rancheria, see Amazon.com Services LLC.

At very minimum, it’s clear that Aramark’s subsequent statement did not “assure employees that, going forward, the employer will not interfere with the exercise of their Section 7 rights.” The statement also does not appear to specifically identify the coercive conduct Aramark engaged in. It also appears from the reporting that the illegal communication was provided to Aramark workers via a letter in each shift lead’s folder while the correction to that communication was merely provided as a “statement.” This does not seem to be “adequate publication of the repudiation.”

Thus, absent additional repudiation of the initial letter from Aramark, I think an unfair labor practice charge filed against Aramark alleging a violation of Section 8(a)(1) would succeed. I am too busy to file one myself, but literally anyone reading this can do so by filling out this form on the NLRB website.