New Orleans Starbucks workers in more than sixty stores have filed for representation elections with the NLRB. The company, no doubt looking for a way to pushback, recently fired seven workers in one of its locations in Memphis, Tennessee. They are sending a message, but how are workers and customers supposed to respond to their counterattack?
In trying to stir this pot, I have suggested that any Starbucks customers, who are so inclined, should engage in union talk with the counter baristas. Some readers and listeners have reached out and asked me what the limits might be under the NLRB rules, and, now in the shadow of Memphis, if they followed my advice, would they be risking some barista’s job? Let’s take this question head-on before diving into the Memphis firing.
The bright line under NLRB rules would be the past practice around speech that existed in the workplace before the questions around workers’ unionizing became the favored topic of the day.
If workers previously had been allowed in their workplace at Starbucks to talk about anything under the sun to their co-workers while on-the-job and behind the counter, then talk about unionizing would be protected speech and protected concerted activity when engaged with co-workers. If disciplined, it would not be open and shut, even if clearly a violation of labor law, because the burden would be on the worker or workers to prove that this had been the past practice. The best prophylactic would be to document via recording or in writing what is allowed as “normal” banter behind the counter on other subjects from sports to politics to whatever you might be doing after work. Even without that, solidarity could be sufficient protection if co-workers are willing to give an affidavit on the facts to the NLRB board agent to protect anyone discipline. Of course, for workers talking to workers, no matter what the past practices have been, it’s smart not to talk union in front of statutory supervisors, since Starbucks is bound to now be counseling their supervisors on how to stop the union now that it is in danger of becoming a prairie fire. That’s just common sense.
For Starbucks’ customers, the application of the law would be similar. If you are a Starbucks’ regular, it’s clear you may not like good, fair-trade coffee, but I don’t want to get off message here. So, if you are a regular, you likely have some kind of relationship with the barista or baristas who regularly work the shift when you arrive. If it has been normal discourse for you to talk with the barista back-and-forth about any topic under the sun from the weather to the latest headlines about some outrage or another from January 6th to the increases in their rent or utilities, then a conversation about unionizing would be protected speech. You need to do the barista a favor and document the past practices as well as being prepared to give an affidavit to the NLRB if the barista is disciplined. Other than that, go for it!
Got it! I hope so. This is a wide road and easy to travel, if you know where you are going and keep your eyes open.
All of this is at the heart of the issue on the Memphis firings. The reports from the workers are that they were doing what they had done before and what had been usual and past practice and never the source of discipline in the past. The spokespeople for Starbucks are saying that they broke the rules, and, in fact, they may have broken rules that were outlined somewhere or in a corporate manual, but, and it’s a big but, if these rules are only now being enforced because there is union talk and organizing, they it is illegal under the Act and a situation of disparate discipline. This doesn’t mean they are guaranteed to win, because the fly in the ointment here has to do with the fact that they allowed the media in the shop. The NLRB may find even if the workers are right on what was usually allowed, they knew – or should have known – that media in the store after hours was a no-no. Even under the NLRB, there’s no substitute for good judgement. We’ll have to see what happens here.
As I’ve said repeatedly, organizing is about struggle. Join in and help these Starbucks workers in their fight!