News & Commentary

May 20, 2022

Tascha Shahriari-Parsa

Tascha Shahriari-Parsa is a student at Harvard Law School.

In today’s news and commentary, NLRB prosecutors plan to issue a complain against Amazon for unfair labor practices; Starbucks defends its captive audience meetings; and NLRB Prosecutors lay out their legal theory for why workers wearing Black Lives Matter buttons could be protected activity under the NLRA.

NLRB prosecutors intend on issuing a complaint against Amazon for unfair labor practices. The NLRB’s regional director of the Brooklyn Office accused Amazon of threatening to pay staff minimum wages if they unionized, and of retaliating against an employee for advocating for a paid holiday on Juneteenth, at one of the Staten Island facilities in New York. On the first issue, the regional director concluded that Amazon held captive audience meetings where it threatened that Amazon could use minimum wage as the floor for collective bargaining, which would be down from $18/hour to the local minimum wage of $15/hour. As Seth Goldstein, lawyer for the Amazon Labor Union, has stated, this could be the case for the NLRB to find that captive audience meetings are in violation of the NLRA, in line with General Counsel Jennifer Abruzzo’s April 7 memo. On the second issue, the regional director determined that Amazon retaliated against a worker who used the “Voice of the Associate” board at the warehouse to ask for a Juneteenth holiday, by prohibiting that worker from using the board in the future.

Meanwhile, Starbucks argued that its captive audience meetings are protected by the First Amendment. An unfair labor practice complaint made by NLRB’s Office of the General Counsel on May 5 accused Starbucks of interrogating and threatening employees in relation to their union activity. In its answer this Tuesday, Starbucks denied the allegations of threats or interrogation, but claimed that its captive audience meetings are protected free speech under the NLRA and the First Amendment.

A post-hearing brief outlines NLRB prosecutors’ argument on how retaliation against workers for wearing Black Lives Matter apparel constitutes an unfair labor practice. As I reported late last year, the NLRB has taken on several cases on the rights of workers to wear Black Lives Matter insignia at work, involving Whole Foods, Home Depot, and Kroger. In the Kroger case, which this brief is concerned with, the NLRB accused Kroger of enforcing a dress code that prevented workers from wearing BLM buttons and apparel at work, and then sending several workers home without pay for declining to take off their buttons. As the brief argues, the BLM movement “is aimed at combating racism in all its forms, including in the workplace – and thus the BLM civil rights movement is objectively connected to improving employees’ interests as employees.” Thus, by wearing BLM buttons, employees were engaged in concerted activities “for the purpose of . . . mutual aid or protection,” which are protected under Section 7 of the NLRA.

The case could allow the NLRB to effectuate Abruzzo’s position that Section 7 should cover “political and social justice advocacy where the subject matter has a direct nexus to employees’ interests as employees,” in line with her own memo last August—which encouraged cases which would allow the Board to reconsider its interpretation of the “mutual aid or protection” clause—and with former Acting General Counsel Peter Ohr’s memo last March which used the same wording to call for the expansion of the NLRB’s interpretation of Section 7 rights.

On the Board’s workplace civility doctrine, the brief also asks the Board to overturn Boeing Co. (2017). To determine whether a facially neutral workplace civility code is prohibited, Boeing set up a balancing test in which the Board weighs legitimate business reasons for the workplace rule against its potential to chill the exercise of Section 7 rights. The brief calls for a standard based on Lutheran Heritage Villlage-Livonia (2004), which Boeing had overturned. Lutheran Villagegenerally prohibited the maintenance of employer rules if ‘employees would reasonable construe the language to prohibit Section 7 activity.’” Business reasons for employer rules still came into the analysis in Luterhan “in determining how employees would reasonably interpret the rules.” As Joshua argued on this blog after Boeing was decided, “Rather than protecting workers from harassment, the Boeing Board’s approval of overbroad civility codes is likely to harm workers’ ability to build power that they can use to protect themselves from harassment.”

In other news, this cute convenience store worker appears to have gone on a wildcat strike:

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