From: Letwin, Michael
Sent: Friday, May 11, 2012 10:07 AM
To: ALAA MEMBERS
Subject: RE: NLRB v. Starbucks, 2d Cir: Starbucks Can Limit Pro-Union Buttons of Baristas, Panel Says
Fortunately, the Starbucks decision does not apply to us.
Unlike the Starbucks workers, we have a collective bargaining agreement, and it provides unambiguous free speech protection: “The expression of personal religious, political, social or economic beliefs of each and every attorney is fully guaranteed.” § 3.5.
In that spirit, the Society joined ALAA and 1199 to successfully defend attorneys’ right to wear “Ready to Strike” buttons in court, Frankel v. Roberts, 165 AD2d 382 (1st Dept. 1991)<https://alaa2325.wordpress.com/1991/04/02/free-speech-decision-frankel-v-roberts-1991/>, and to challenge the Giuliani administration’s retaliation for the 1994 strike.
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Sent: Friday, May 11, 2012 9:13 AM
To: ALAA MEMBERS
Subject: NLRB v. Starbucks, 2d Cir: Starbucks Can Limit Pro-Union Buttons of Baristas, Panel Says
Starbucks Can Limit Pro-Union Buttons of Baristas, Panel Says
By Mark HamblettContactAll Articles
New York Law Journal
May 11, 2012
Starbucks’ rule that employees could only wear one pro-union button on their uniforms during a labor organizing campaign was not in violation of the National Labor Relations Act, a federal appeals court has ruled.
The U.S. Court of Appeals for the Second Circuit said Starbucks was entitled to limit button wearing as part of its strict dress code for servers during a campaign by the International Workers of the World to unionize several Manhattan stores.
The pins at issue were less than one inch in diameter and had “IWW” in white letters against a red background.
In 2008, Administrative Law Judge Mindy Landow found the buttons were no more conspicuous than other buttons Starbucks requires or allows employees to wear for promotional purposes. Landow said the policy violated subsection 8(a)(1) of the National Labor Relations Act, 29 U.S.C. §158(a)(1).
Landow also found that two employees who were active in the union-organizing effort and had clashed with supervisors, Joseph Agins and Daniel Gross, had been fired in violation of subsection 8(a)(3) of the act, because they had been essentially terminated for labor organizing.
Landow concluded, and the National Labor Relations Board affirmed, that Starbucks had committed a number of restrictive and illegal practices in its anti-union campaign, including barring employees from discussing the terms and conditions of their employment, discriminating against pro-union employees about work opportunities and prohibiting the posting of union materials on bulletin boards in employee areas.
These last findings were not challenged in Starbucks’ cross-petition to the Second Circuit, where Judges Jon Newman (See Profile), Ralph Winter (See Profile) and Robert Katzmann (See Profile) heard oral arguments in National Labor Relations Board v. Starbucks, 10-3511-ag, on Nov. 22, 2011.
“We conclude the Board has gone too far in invalidating Starbucks’ one-button limitation,” Newman wrote for the panel. “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’ 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.”
He said one employee tried to display as many as eight union buttons on her pants, shirt, hat and apron.
“Wearing such a large number of union buttons would risk serious dilution of the information contained on Starbucks’ buttons, and the company has a ‘legitimate, recognized managerial interest[]’ in preventing its employees from doing so,” he said, citing District Lodge 91 v. National Labor Relations Board, 706 F.2d 401 (2d Cir. 1983).
Discharged Employees
The circuit then remanded the case of Joseph Agins to determine what standard to be applied to his conduct.
Agins was off-duty on Nov. 21, 2005, when he and several other off-duty employees went to the store on 9th Street wearing union insignia to show support for store employees who had been instructed to remove pro-union pins. Agins became involved in a shouting match that included obscenities with an off-duty manager from another store who had questioned him about why Starbucks needed a union.
The administrative law judge had found that Agins’ obscenity-laced outburst was still protected because it originated out of a discussion that was primarily about the union and did not involve threats toward his own supervisor.
“We think the analysis of the ALJ and the Board improperly disregarded the entirely legitimate concern of an employer not to tolerate employee outbursts containing obscenities in the presence of customers,” Newman said
Gross was fired from a store on 36th Street after a string of strong performance reviews that were followed by poor reviews tracking his decisions to work fewer hours, not participate in Starbuck’s employee-to-employee awards programs and get deeply involved in the union-organizing campaign.
Newman said a prima facie case had been established that Gross was fired for his union activity, but said the administrative law judge “appears to have misapplied the second step of the burden-shifting analysis.”
“As noted, at that step the issue is whether Starbucks would have fired Gross absent his union activity,” he said. “Here, there was strong evidence that it would have done so” as it is “undisputed that Gross was, in many respects, a poor employee.”
Gross’ “documented performance deficiencies provide a sufficient and independent reason to fire him,” the panel said.
Jeffrey Burritt argued for the National Labor Relations Board.
Patricia Millett of Akin Gump Strauss Hauer & Feld represented Starbucks.
@|Mark Hamblett can be contacted mhamblett@alm.com.
FROM THE DECISION:
“The following facts, essentially not disputed, were found by Administrative Law Judge Mindy E. Landow (“the ALJ”) and adopted by the Board. From 2004 to 2007, the Industrial Workers of the World (“IWW”) engaged in a highly visible campaign to organize wage employees in four Starbucks stores. Among other efforts, union supporters held protests, attempted to recruit “partners,”1 and
made numerous public statements to the media.
In response, Starbucks mounted an anti-union campaign aimed at tracking and restricting the growth of pro-union sentiment. In the course of this campaign, Starbucks employed a number of restrictive
and illegal policies. These included 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. In this Court, Starbucks does not challenge the Board’s determination that this conduct violated the Act.
During this time period, the Board also found that Starbucks committed three additional violations. First, it found that a Starbucks policy prohibiting employees from wearing more than one pro-union button on work clothes was an unfair labor practice.
Second, it found that Starbucks used protected activity to justify the discharge of pro-union employee Joseph Agins. Third, it found that Starbucks’s decision to discharge pro-union employee Daniel Gross was primarily motivated by anti-union animus.“
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