Header graphic for print
Labor & Collective Bargaining

Cooler Heads Prevail: 2d Circuit Reins in NLRB on Union Button Restrictions, Employee “Opprobrious Behavior”

Buttoning Down the Corporate Image

Since 2004, the current incarnation of the International Workers of the World (the storied “Wobblies” of labor’s glory days) has run a high-profile organizing campaign at several Starbucks stores.  The company has been resisting the union’s efforts to organize its baristas.  Company policy encourages employees to wear multiple buttons promoting Starbucks’ products, however, the company banned employees from wearing union buttons.  A ban on union insignia, in most instances, is a violation of the NLRA. Unfair labor practice charges were filed; the case was settled, and the company implemented a new policy, which permitted employees to wear one union button.  The IWW filed new charges against the company. The Board found the one-button limitation also was a violation of the Act.  The company sought review of the Board’s decision in the Second Circuit court of appeals.

The Court noted that under Board law, an employer may restrict employees’ right to wear union buttons where the company maintains a specific, uniformed-employee image. NLRB v. Starbucks Corp., Nos. 10-3511-ag, 10-3783-ag (2d Cir. May 10, 2012). Starbucks has established a public image of employees wearing product buttons. The broad rule asserted by the Board would give employees an unlimited right to wear union buttons – allowing them to become “personal message boards” that would “seriously erode” the message intended by the company. The Court held that permitting one union button was adequate to protect employees’ rights under the Act.

Exuberant Misconduct in Front of Customers Might Not Be Protected

The Court also reviewed the discharge of a pro-IWW employee who protested the company’s button policy. The employee was terminated following a heating exchange with a manager in front of customers. Among other things, the employee told the manager to “go f— yourself.”

The Board ordered the employee’s reinstatement, following the rule of a 1978 case, Atlantic Steel Co. (245 NLRB 814). In that case, the Board said the protection of the Act could be forfeited if in the course of exercising otherwise protected conduct, the employee engaged in “opprobrious behavior.”  Whether the employee lost his Section 7 protection depended on an analysis of:

(1)        the place of the discussion;

(2)        the subject matter of the discussion;

(3)        the nature of the employee’s outburst; and

(4)        whether the outburst, in any way, was provoked by an employer’s unfair labor practice.

 

The Board held that the employee’s outburst here was “brief” and was related to union activity – thus his discharge was a violation of the Act.

The Second Circuit rejected the Board’s analysis. “We think the…Board improperly disregarded the entirely legitimate concern of an employer not to tolerate employee outbursts containing obscenities in the presence of customers.”  The four-factor Atlantic Steel test did not contemplate obscenities in “public venues where customers are present,” and therefore, “is inapplicable to an employee’s use of obscenities in the presence of an employer’s customers.”

The Court remanded the case to the NLRB to determine the standard to apply regarding such conduct occurring in the presence of customers.

Employers should not change their policies or disciplinary practices in reliance on these cases – yet. The Second Circuit is one regional appeals court. Its rulings apply to the Board in this case only. The Board may or may not embrace the Court’s rationale in any other case.

Also, the button rule in this case would apply only to a small percentage of employers who have consistently maintained uniform policies. In most cases, even uniformed employees have the right to wear union insignia. Here, the case turned on the employer’s unusual practice of having employees wear multiple buttons for the purpose of sales promotion.