NLRB Division of Advice: In-Store Protest Wasn’t Protected

Allen Smith, J.D. By Allen Smith, J.D. September 22, 2020
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a Starbucks coffee shop

​An in-store protest by off-duty employees at a Starbucks store wasn't protected by the National Labor Relations Act (NLRA), according to the National Labor Relations Board (NLRB) in an advice memo (Starbucks Coffee Company).

In a separate memo (Memphis Ready Mix), the NLRB Division of Advice found that another employer did not have an obligation to engage in midterm bargaining over the union's proposals for paid sick leave and hazard pay due to the pandemic. In reaching this determination, the memo relied on the language in the parties' collective bargaining agreement.

The primary practical implication of the Starbucks Coffee Company advice memo is that an employer can fire workers who participate in disruptive in-store protests, said James Bucking, an attorney with Foley Hoag in Boston.

Starbucks Protest

Approximately 15 demonstrators, including three or four off-duty employees and a group of nonemployee supporters, crowded into a relatively small Starbucks store and congregated near the counter toward the back. They assembled before the store manager, read a letter previously submitted to management and left chanting a slogan insisting that the store manager "must go."

The NLRB found that off-duty employees who enter an employer's restaurant or retail establishment to engage in NLRA-protected activity retain the act's protection only if their conduct does not disrupt the employer's operations.

"While the demonstration was brief—lasting about four to five minutes—the public reading of the demand letter, coupled with the loud and boisterous chanting, undoubtedly caused a significant disruption for the patrons," the advice memo read, noting that there was video footage of the demonstration.

Coffee shop customers expect "quiet enjoyment," particularly at a place like Starbucks that promotes a warm and welcoming environment for customers to gather and connect, the NLRB memo stated. The NLRB Division of Advice also noted that the store provides employees with guidance for addressing behavior that "interferes with the Starbucks experience."

"What the employees did here basically amounted to obstructionist picketing inside the store," Bucking said. "No employer should have to tolerate that on its own property."

Phillip Wilson, president and general counsel with Labor Relations Institute in Broken Arrow, Okla., said, "It's one thing to protest outside a place of business, which is clearly protected. But when you carry protest inside the business in a way that's designed to completely disrupt the operation and the employees and customers inside, that is a whole different level of intrusion." In-store protests "are not just disruptive, but they can be very emotional and sometimes turn violent," he said.

However, Joseph Richardson, an attorney with Willig, Williams & Davidson in Philadelphia, called the Starbucks advice memo "an unwarranted expansion of the policy expressed in the board's 1982 decision in Restaurant Horikawa." In that case, a mass demonstration at a restaurant during the peak dinner hour by 30 people, only one of whom was an employee, seriously disrupted the business, according to the board.

"In Starbucks, by contrast, the general counsel signals that otherwise protected activity by off-duty employees that in any way disrupts the employer's operations could lawfully form the basis for disciplinary action," Richardson said. The Starbucks memo extended the scope of the Horikawa rule "beyond restaurants to any retail establishment where customers have the expectation of quiet enjoyment," he noted. "Most traditional forms of workplace protest would potentially be covered by this new policy, which will significantly restrict the rights of employees in those workplaces to have their voices heard during off-duty periods."

Edgar Ndjatou, executive director of Workplace Fairness in Washington, D.C., said the Starbucks memo "seems a little arbitrary. Four or five minutes will not make a major dent in profits."

But David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis, said the memo reached "the right outcome, given that the demonstration involved 15 people crowded in a small coffee shop and yelling where people often go to work [and] read." He said the protest "went well beyond reasonableness and disrupted business."

[Need help with legal questions? Check out the new SHRM LegalNetwork.]

No Duty to Engage in Midterm Bargaining

In Memphis Ready Mix, the board wrote in an advice memo that a concrete producer and distributor did not violate the NLRA by refusing to bargain over the union's proposals for paid sick leave and hazard pay due to the COVID-19 pandemic.

"A party to a collective bargaining agreement is under no obligation to bargain over issues covered by the contract during the life of the agreement," the memo read. "Even as to matters not specifically covered by the contract, a zipper clause may relieve a party of any obligation to engage in further midterm negotiations."

In this case, the parties' collective bargaining agreement included provisions addressing leaves of absence and wages, as well as broad management rights and zipper clauses, the memo noted. "Even assuming that the leave-of-absence, wage and management-rights provisions do not cover the subjects of paid leave and hazard pay, we conclude that the zipper clause is dispositive," it added.

Zipper clauses dictate that what is provided in the agreement is all that the parties intended to negotiate over during the term of the agreement, so neither side needs to bargain over other matters so long as the agreement lasts, Pryzbylski explained.

"Zipper clauses can be useful because they bring finality to bargaining," he said. Once bargaining negotiations are over, both sides can move forward knowing no other negotiations will occur during the life of the agreement.

"This can bring stability to the workforce," Pryzbylski said. "On the flip side, there may be circumstances where a company wants to engage in midterm bargaining over an issue, so a zipper clause could hurt there. A company should carefully consider the ramifications of such a clause before ever agreeing to one."

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