Starbucks recently won a limited victory in a case involving employees wearing pro-union buttons at work. National Labor Relations Board v. Starbucks Corp. Court of Appeals Second Circuit, Case No. 10-3511. A common union organizing tactic is to have pro-union employees wear union buttons at work. Employers often have the mistaken impression that they can ban union buttons at work as part of their dress code or uniform policy. But, the NLRB and courts have consistently held that expressing support for unions by wearing buttons on clothing is a protected means of expression about union organizing. Even if the company policy is to ban other sorts of buttons, like political campaign buttons or sports team buttons, union support buttons cannot be prohibited because wearing them is a special protected form of expression. Employers can restrict wearing union-support buttons only in very limited circumstances, such as when the buttons may scratch or otherwise damage products.
Even though Starbucks prevailed ultimately, the case illustrates how aggressively the NLRB enforces the rights of employees to wear union buttons at work. Starbucks was actually allowing employees to wear one pro-union button while working. The problem came when some employees insisted on wearing multiple union buttons at the same time. In fact, one worker was wearing eight union buttons. Starbucks argued that multiple union buttons detracted from the the impact of certain company-issued buttons and badges relating to the business. The NLRB held that Starbucks could not limit employees to wearing only one pro-union button. Starbucks appealed and the Second Circuit Court of Appeals reversed the NLRB and held that Starbucks could limit employees to wearing just one pro-union button at a time. The Court also reversed an NLRB finding that Starbucks had fired an employee for union activity and sent a similar claim regarding another worker back to the NLRB for further consideration.
The lesson: If you are faced with employees wearing pro-union buttons, pins, hats, t-shirts, etc., do not presume you have the right to ban or limit those actions. It is not enough to argue that you enforce restrictions consistently. The right to express support for unionization by wearing the message is one protected under the National Labor Relations Act. You should contact legal counsel before deciding how to handle the issue.