Starbucks and NLRB Notice Readings

Benjamin Sachs

Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School.  From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C.  Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere.  Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School.  He can be reached at [email protected].

The NLRB remedy of “notice reading” is much in the news these days, as the Board has ordered Starbucks — and most recently, Howard Schultz himself — to read to its employees the notice detailing Starbucks’ violations of labor law and the remedies the company is being ordered to carry out. The Board ALJ deserves credit for ordering this remedy, and the full Board should endorse it if called upon to do so. Here’s (one of the reasons) why.

In a typical unfair labor practice proceeding, the NLRB orders the employer to comply with some set of commands — to reinstate a discharged worker, for example, or to begin bargaining in good faith — and also to post a notice detailing the terms of the Board’s order. Notice postings themselves generally are uncontroversial and generate little employer opposition, largely because they’re relatively innocuous, even meaningless. On the other hand, in certain cases the Board will order the employer not only to post the notice but also to read that notice to its employees. These orders tend to generate more employer opposition, because they’re not innocuous and can actually be quite meaningful on the ground.

In an article in the Texas Law Review, I analyze notice readings in greater depth, treating them as a critical part of labor law’s symbolic capacity to signal to employees that their employers are not immune from labor law. Thus:

Notice readings, like most remedies, have various effects. Like a notice posting, a notice reading conveys facts to employees, perhaps more effectively than postings do. But notice readings also have a separate effect. . . . When management reads to employees a list of actions the law requires it to take and not take, management enacts its vulnerability to labor law. Such a public commitment to comply with the law’s requirements may well be experienced by managers as humiliating and embarrassing. But this tells us more about management’s views of the legitimacy of labor law than about the remedy of notice reading. More important than the embarrassment a manager might feel is the signal the reading sends to employees—a signal of the legal fact that employers are susceptible to labor law and to the unionization project labor law protects.

This susceptibility to labor law, in turn, can have important effects on organizing efforts. As the article puts it, notice readings can contribute to successful organizing, bargaining and union building by:

convincing workers that management (and the nonunion system of workplace relations it supports) is susceptible to challenge. When labor law intervenes visibly in the workplace and renders management observably subject to an authority more powerful than itself, the law helps convince workers that management and its preferred system of authority relations is vulnerable. Persuading workers that management is vulnerable, in turn, improves workers’ assessments of the likely success of unionization. It therefore increases workers’ willingness to participate in unionization efforts and facilitates unionization among workers who desire it—labor law’s central function.

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