‘Overly Broad’ Civility Rule Struck Down by NLRB Judge

Many employers might assume that an employee yelling at work is grounds for discipline, but a National Labor Relations Board (NLRB) administrative law judge (ALJ) recently ruled that Starbucks’ civility policy was overly broad.

The ALJ didn’t believe the worker, a lead union organizer, had been yelling, despite Starbucks’ assertion that this was the reason for her discharge. In the May 21 decision, the ALJ held that the coffee chain's civility rules ran afoul of the National Labor Relations Act (NLRA) when applied to the employee. We’ve gathered articles on the news from SHRM Online and other outlets.

Starbucks’ Policy Ordered Rescinded

A Starbucks store must roll back its handbook policy on respectful communication.

Starbucks managers at a cafe in Ann Arbor, Mich., acted with “profound ignorance” over employees’ rights under federal labor law by firing the store’s lead union organizer, an NLRB ALJ ruled. The organizer was fired in September 2022 after she had multiple confrontations with store leadership and district managers. Management claimed that she had violated the company’s policy on communicating respectfully by yelling several times about staffing issues, sometimes within earshot of customers.

A Starbucks spokesperson said the company is reviewing the decision but is focused on “training and supporting” managers and on “progressing negotiations towards ratified store contracts this year.”

(Bloomberg Government)

Judge Finds Fault with Guidelines

Starbucks’ 76-page staff manual, referred to as the “Partner Guide,” directed under the heading “Commitment to a respectful workplace” that “We treat each other with dignity and respect, and connect with transparency.” Another challenged directive in the guide, this one under the heading “How we communicate,” stated that employees, referred to as partners, “are expected to communicate with other partners and customers in a professional and respectful manner at all times.” The guide stated that employees who violate the policies “will be subject to disciplinary action, up to and including separation from employment.” The guide also stated that the policies should not be “interpreted to interfere with ... partner communications” protected by the NLRA “regarding ... terms and conditions of employment”; that Starbucks reserved the right to change anything in the guide with or without notice to employees; that employment was “at-will”; and that the company reserved the right to “separate a partner from employment at any time, with or without notice.”

The ALJ concluded that the employee did not yell at work but “continued in a resolute and admirably calm manner to raise those concerns while also getting her work done.” The ALJ added that “it is shocking” that Starbucks “would react to learning of these exchanges” by disciplining the employee, rather than by reaching out to her to address her union concerns. The company had started the process of discharging her before the incidents it now relies on to justify the discharge, the ALJ said.

In addition, the ALJ found that Starbucks’ “rules requiring employees to limit themselves to respectful communications with other partners, including supervisors and managers, would reasonably tend to chill employees’ exercise of their rights under the act and, under Stericycle … is presumptively unlawful.” The ALJ said “that chilling effect is heightened here” by the company’s “reliance on the overbroad rules to discipline and discharge” the employee in retaliation for protected union activity.

Nor did Starbucks’ “savings clause” noting that its policies would not be interpreted to interfere with employee communications regarding the terms and conditions of employment spare the company in this instance. The ALJ noted that in this case, the savings clause did not identify the challenged rules and were not repeated in proximity to them but instead many pages away.

Moreover, the clause regarding the NLRA only acknowledged the employees’ rights to engage in communications regarding terms and conditions of employment, not the full panoply of rights under the act and, in particular, did not mention unions or employees’ right to engage in union activity.

Lastly, the same page that included the savings clause “also states that management can change anything in the guide at ‘any time, with or without notice,’ and can also ‘separate a partner from employment at any time, with or without notice,’ ” the ALJ stated. “Thus, in context, the savings clause would provide, at best, cold comfort to employees even if one assumes that employees had that page in mind when reading rules that appear in distant portions of the partner guide.”

However, the ALJ ruled against another employee who claimed he was terminated based on union activity. That employee’s termination was upheld in light of his pattern of insubordination and instances of profanity directed at a district manager in the presence of customers.

(NLRB ALJ decision)

Stericycle’s Far-Reaching Impact

Legal experts thought that civility rules might be targeted by the NLRB after its ruling in Stericycle last year. Peter Spanos, an attorney with Taylor English Duma in Atlanta, said other possibly vulnerable policies that the board might scrutinize more closely after the ruling include ones that:

• Restrict employees’ use of social media.
• Restrict criticism, negative comments, and disparagement of the company’s management, products, or services.
• Prohibit insubordination.
• Require confidentiality of investigations and complaints.
• Restrict behaviors such as using cameras or recording devices in the workplace.
• Outline rules for safety complaints.
• Restrict the use of company communication resources, such as email and Slack.
• Limit the recording of meetings or the use of smartphones or other devices.
• Restrict meetings with co-workers or the circulation of petitions.
• Limit comments to the media or government agencies.

(SHRM Online)