New England Biz Law Update
The National Labor Relations Board has ruled that a manager did not violate federal labor law when she told an employee from a unionized store that union workers might no longer be able to pick up shifts at nonunion locations.
The 2-1 decision reversed an administrative law judge who had found that the manager’s comments could reasonably be interpreted as a threat to eliminate work opportunities because of union activity.
The case involved a Seattle-area Starbucks employee whose home store had unionized in 2022. Shortly after the union was certified, the employee was working a shift at another store when coworkers told her that employees from union and nonunion stores would no longer be able to swap or “borrow” shifts.
The employee asked the manager of that store about the policy. According to the record, the manager said she had attended a meeting where company lawyers discussed separating union and nonunion stores for shift-borrowing purposes, but also said she was unsure exactly what the policy was and reassured the employee that she was “always welcome” at the store. The employee later transferred to that location full time.
The union filed an unfair labor practice charge, and an administrative law judge ruled against Starbucks in 2023. The judge concluded that the manager’s statements could have discouraged union activity by suggesting that unionized employees could lose access to additional shifts and income.
NLRB reverses
The Board’s majority disagreed. It emphasized that the employee had initiated the conversation, that the manager expressed uncertainty rather than announcing a firm policy, and that she reassured the employee she remained welcome at the store.
Considering the exchange as a whole, the Board concluded the comments did not have a reasonable tendency to interfere with protected union activity.
The decision stands in contrast with several other recent cases in which the NLRB found managers’ statements about unionized employees working at nonunion stores unlawful.
The Board distinguished those cases in part because the conversations were not initiated by employees and involved more definitive statements about potential consequences for unionization.
What employers can take from the ruling
The decision illustrates how heavily the NLRB may weigh context when evaluating what managers say during union organizing or after a workplace unionizes.
Statements about possible changes to scheduling, benefits or work opportunities can create risk if they sound like threats tied to union activity.
But the Board’s ruling suggests that an employee-initiated conversation, a manager’s clear expression of uncertainty and reassurance that no adverse consequence is being imposed may affect how the exchange is viewed under federal labor law.
The case is a reminder that managers should be carefully trained on how to respond to employee questions about union-related workplace changes without speculating, threatening consequences or presenting uncertain information as established company policy.
