The opinion of the court was delivered by: Jon O. Newman, Circuit Judge.
NLRB v. Starbucks Corporation
Before: NEWMAN, WINTER and KATZMANN, Circuit Judges.
Petition to enforce the August 26, 2010, decision and order of the National Labor Relations Board ruling that employer committed various unfair labor practices and cross-petition to review the decision insofar as the Board determined that a an employer's dress code limiting employees to wearing only one prounion button on their work clothes and the discharge of two employees are unfair labor practices.
Petition enforced only as to unfair labor practices not challenged by employer; cross-petition for review granted as to the dress code violation and the discharge of one employees; case remanded as to the discharge of the other employee.
Judge Katzmann concurs with a separate opinion.
This petition for enforcement of an order of the National Labor Relations Board ("the Board") and an employer's cross- petition for review primarily concern the validity of an employer's dress code provision limiting employees to displaying only one pro- union button on their work uniforms. Also at issue are the discharges of two employees. These issues arise out of efforts to unionize employees at several Starbucks coffee shops in Manhattan. The Board seeks enforcement of its August 26, 2010, order finding Respondent-Cross-Petitioner Starbucks Corporation, d/b/a Starbucks Coffee Company ("Starbucks" or "the company"), to have committed several unfair labor practices, including the three challenged in this case, in violation of subsections 8(a)(1) and 8(a)(3) of the National Labor Relations Act ("the Act"), 29 U.S.C. § 158(a)(1), (3). Starbucks cross-petitions to set aside the challenged portions of the Board's Order. We conclude that Starbucks's enforcement of its one button dress code is not an unfair labor practice, nor was one of the two challenged discharges; as to the other discharge, a remand is required. We therefore enforce in part, grant the cross-petition for review in part, and remand.
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,"*fn1 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.
A. Starbucks's One Button Policy
Starbucks implements a comprehensive dress code for its employees. The code includes rules about appropriate types and colors of shoes, pants, socks, shirts, undershirts, and jewelry. 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 implemented a policy prohibiting multiple pro-union buttons following an informal settlement agreement between Starbucks and the Board in March 2006. Pursuant to that settlement agreement, Starbucks replaced its prior prohibition of all prounion buttons with the following written policy:
Partners are not permitted to wear buttons or pins that advocate a political, religious or personal issue. The only buttons or pins that will be permitted are those issued to the partner by Starbucks for special recognition or advertising a Starbucks-sponsored event or promotion; and reasonably-sized-and-placed buttons or pins that identify a particular labor organization or a partner's support for that organization, except if they interfere with safety or threaten to harm customer relations or otherwise unreasonably interfere with Starbucks [sic] public image.
Starbucks management interpreted this rule to preclude the wearing of more than one pro-union pin, and requested that several employees remove additional pins before being allowed to work. The prohibited pins were less than one inch in diameter and bore the initials "IWW" in white letters against a red background. After examining photographs, the ALJ found that these pins were no more conspicuous in size or design than the Starbucks-issued pins.
B. The Discharge of Joseph Agins
Beginning in May 2004, Joseph Agins worked at Starbucks's 9th Street store as a barista. In 2005, Agins became a vocal union supporter, and was identified as such by management in internal communications.
The May 14 incident. On May 14, 2005, Agins was working with Assistant Store Manager ("ASM") Tanya James and one other employee.
During a particularly busy period, Agins became agitated with James after she refused his request to help. When she eventually came to help, Agins said that it was "about damn time" she came on the line, and shoved a blender in the sink, causing a loud noise. He later stated, "[T]his is bullshit," and told James to "do everything your damn self." When James told Agins to clock out, he initially refused.
Based on this encounter, Starbucks generated a corrective action notice that informed Agins that "the aforementioned behavior, if repeated will result in termination of employment at Starbucks Corporation." However, the notice was never provided to Agins. Nevertheless, Agins was suspended for several days and apologized for his outburst.
The November 21 incident. Several months later, Agins and several other off-duty employees entered the 9th Street store to show support for on-duty workers who had been instructed, pursuant to the prior policy, to remove their pro-union pins. Agins and his companions were wearing union t-shirts, caps, and insignia, including pro-union pins and buttons.
Shortly after the group entered the store, Agins was approached by Ifran Yablon, an off-duty manager from the company's Upper West Side store, who happened to be a regular customer at the 9th Street store. There was bad blood between the two. At an IWW rally several months before, Yablon had allegedly ...