The National Labour Relations Board recently found coffee giant Starbucks to have violated federal labor law through its maintenance of an overly broad dress code policy for its employees. In addition to the unlawful maintenance of the dress code policy, the Board also concluded that Starbucks violated labor law by threatening employees with punishment for engaging in union activities, threatening discipline for violating the dress code policy, and unilaterally changing its store hours and employee work schedules in violation of the collective bargaining agreement with the Union.
The dress code policy at issue prohibited any apparel with graphic logos other than a small manufacturer’s logo. The relevant dispute arose at a Knoxville, Tennessee Starbucks store that unionized in 2022. An employee at the store claimed Starbucks violated her right to engage in protected activity when it prevented the worker from wearing a T-shirt with a large union logo. When the employee showed up to work wearing the T-shirt, the shift manager informed the employee that the T-shirt was not allowed because the policy prohibited apparel with graphic designs. In response, the worker asked if she could continue wearing the T-shirt since the required green Starbucks apron would cover up the logo, but the store manager refused the request and required the worker to change her shirt before the start of the shift.
In considering the legality of company dress code/uniform policies and prohibitions on wearing union insignia, the Board applied the Supreme Court’s balancing test set forth in Republic Aviation Corp. v. NLRB and weighed the employee’s right to wear union insignia against an employer’s right to maintain discipline. Any restrictions on an employee’s right to display union insignia are presumed to be invalid, and it is the burden of the employer to establish that its special business circumstances outweigh employees’ right to display union insignia under Section 7 of the National Labor Relations Act (the “Act”). Special circumstances may include situations where the display of union insignia might jeopardize employee safety, damage machinery or products, exacerbate employee dissension, or unreasonably interfere with a public image the employer has established as part of its business plan through appearance rules for its employees. In the Knoxville dispute, Starbucks argued that wearing the union T-shirt deviated from the dress code and negatively affected the “third place” atmosphere it markets to customers. Starbucks wanted to maintain an image of being a place where everyone feels welcome and where customers are not offended by things worn by employees.
The Board rejected Starbucks’ argument, finding that the union T-shirt met all of Starbucks’ dress code requirements but for the Union insignia, which would have been covered or mostly covered by the required Starbucks-issued apron. Notably, the Board considered the fact that the record contained no evidence of customers making negative comments concerning the union apparel worn by the employee. Even if customers saw the logo peeking out from behind the apron, the administrative law judge posited, the logo on the T-shirt was no more controversial or distracting from the enjoyment of the “third place” setting than the wearing of one union pin as permitted by the dress code. The Board concluded that “at best,” Starbucks was asserting a generalized speculation about the effects of wearing a union T-shirt on its café atmosphere. However, such speculation or subjective belief about the potential negative effect was insufficient to rebut the presumption that restrictions on the wearing of union insignia violate the Act. The Board stated that it requires more than conjecture about customers’ negative reactions to employees’ protected union-related activity to find that the potential interference with Starbucks’ brand image outweighed the employee’s right to wear union insignia.
KEY TAKEAWAYS FOR EMPLOYERS
The key takeaways for employers following the Board’s recent decision are:
Buchanan’s team of Labor & Employment attorneys is available to answer any questions employers may have about the recent NLRB decision, as well as review and address any concerns related to the maintenance of employee dress code policies.