Thursday, June 14, 2012

The F-word and union buttons

This case tells us that Starbucks doesn't want its employees unionized. The National Labor Relations Board found that Starbucks committed unfair labor practices in the course of its anti-union campaign in Manhattan. Starbucks did not challenge all the NLRB's negative findings, but it does succeed in overturning the ones that it does challenge.

The case is National Labor Relations Board v. Starbucks Corporation, decided on May 10. Here are the violations that Starbucks committed (and does not challenge in the Second Circuit): "prohibiting employees from discussing the union or the terms and conditions of their employment; prohibiting the posting of union material on bulletin boards in employee areas; preventing off-duty employees from entering the back area of one of the stores; and discriminating against pro-union employees regarding work opportunities." And you thought Starbucks was a hip and happening place. But while the NLRB found that Starbucks violated the labor laws in preventing employees from wearing more than one pro-union button at work, the Second Circuit (Newman, Katzmann and Winter) says this was legal.

The Starbucks dress code tells me that Starbucks is as corporate as any other business. "The purpose of the dress policy, according to Starbucks's employee handbook, is to ensure that partners 'present a clean, neat, and professional appearance appropriate of [sic] a retailer of specialty gourmet products.' Additionally, Starbucks encourages employees to wear multiple pins and buttons issued by Starbucks as part of its employee-reward and product-promotion programs. The ALJ found that many of the adornments worn by employees are not obviously related to employee programs, and that the resulting public image is of a uniformed employee wearing a variety of unrelated pins and buttons on their hats and aprons."

Starbucks told employees that it could not wear more than one pro-union button. While the NLRB said this was an unfair labor practice, the Second Circuit disagrees. True, employees are allowed to wear union insignia at work. But Starbucks complains that the NLRB's ruling allows employees "to wear an unlimited number of buttons and would convert them into 'personal message boards' and 'seriously erode' the information conveyed by Starbucks-issued pins." Individuality is not valued at Starbucks; the corporate message is. The Court of Appeals says:

We conclude that the Board has gone too far in invalidating Starbucks's one button limitation. As the Board has previously recognized, "Special circumstances justify restrictions on union insignia or apparel when their display may . . . unreasonably interfere with a public image that the employer has established." Starbucks is clearly entitled to oblige its employees to wear buttons  promoting its products, and the information contained on those buttons is just as much a part of Starbucks's public image as any other aspect of its dress code. But the company is also entitled to avoid the distraction from its messages that a number of union buttons would risk. The record reveals that one employee attempted to display eight union pins on her pants, shirts, hat, and apron. Wearing such a large number of union buttons would risk serious dilution of the information contained on Starbucks's buttons, and the company has a "legitimate, recognized managerial interest[]" in preventing its employees from doing so. The company adequately maintains the opportunity to display pro-union sentiment by permitting one, but only one, union button on workplace clothing. Starbucks has met its burden of establishing that the one button restriction is a necessary and appropriate means of protecting its legitimate managerial interest in displaying a particular public image through the messages contained on employee buttons.

Another ruling in the case sheds light on how far employees may go in raising hell in the workplace. An employee, Agins, "was discharged primarily for his use of obscenities in an outburst during an organized protest  of Starbucks's restrictive button policy." This outburst took place in front of customers and employees. Agins (who was identified as a union activist in Starbucks' internal memoranda) ran into a manager who was a customer that day. The supervisor, Yablon, had serious issues with Agins."Yablon engaged Agins in a conversation about his union pin and whether Starbucks employees really needed a union. At some point, Agins spoke of Yablon's alleged insult to his father, and the conversation became heated. Both men used hand gestures, spoke loudly, and used obscenities. Agins admitted that he told Yablon, 'You can go fuck yourself, if you want to fuck me up, go ahead, I'm here.' Agins's fellow supporters then intervened to stop the argument, and he withdrew with them to a table while James approached Yablon and told him to 'leave it alone.' Yablon then left the store."

What I love about this case is that the administrative law judge actually held that Agins was fired for union-related activity because his profane outburst arose from a "discussion that was primarily about the union." The Second Circuit is not so sure. Starbucks has a legitimate interest in preventing profane outbursts in the workplace in the presence of customers. On the other hand, the case law governing outbursts like this in the workplace is not clear. Here's the issue:

Whether an employee's outburst in which obscenities are used in the presence of customers loses otherwise available protection if the employee is off duty although on the employer's premises.

On the one hand, it is arguable that section 7 never protects an employee who uses obscenities in the presence of customers, even when discussing employment issues, whether or not the employee is present as an identifiable employee or only as a customer. On the other hand, it is also arguable that section 7 withdraws protection from an employee discussing such issues and using obscenities only when the employee is identifiable by customers as an employee, e.g., in a work uniform. Although an employer has the undoubted right to remove from a store any person, including an employee, who causes a disturbance likely to risk loss of customers, the discharge of an employee has more serious and long-lasting consequences for the employee than a demand that a customer or an employee leave the premises. 

What I really love about this case is that the employee who used the F-word in an outburst toward another Starbucks manager in front of customers might actually be allowed to do so. The Second Circuit sets out the ground rules for a case like this, outlined above. The NLRB has to reconsider its ruling in light of these rules.

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