IF YOU’RE NOT HAPPY AT STARBUCKS…Avoiding Unlawful Threats, Promises, and Reprisals

During a Starbucks “listening session,” in 2022, in response to an employee’s attempt to discuss the benefits of unionization and Starbucks’ alleged unfair labor practices at other stores, former CEO Howard Schultz proclaimed, “If you’re not happy at Starbucks, you can go work for another company.” The National Labor Relations Board (NLRB) held that the statement was an implicit threat of discharge, which implied that union activity was incompatible with continued employment.[1]

While the Starbucks case arose under the National Labor Relations Act (NLRA), and the NLRA does not apply to public agencies, NLRB decisions are relevant in interpreting California’s public-sector labor statutes. The Public Employment Relations Board (PERB) takes guidance from NLRB decisions, where appropriate, in interpreting analogous statutory provisions or principles.

Under the Meyers-Milias-Brown Act (MMBA), as well as other California public-sector labor relations statutes, employees have the right to engage in protected activity, such as union organizing, circulating petitions, and participating in informational picketing. However, employees do not have the right, except in limited circumstances, to engage in union activity while on-duty. Employers are reminded that they may not impose or threaten to impose reprisals on employees, discriminate or threaten to discriminate against employees, or otherwise interfere with, restrain, or coerce employees because of their exercise of rights under the statute.

Public agencies should recognize that PERB has found employer interference in many contexts. Under PERB-administered statutes, employers may not:

• Threaten employees with adverse consequences for union activity, or
• Imply retaliation for engaging in protected rights (e.g., striking, filing grievances, organizing).

Of course, because statements can easily be taken out of context, it is important that supervisors and managers avoid statements that could reasonably be viewed as a threat, promise, or reprisal tied to union activity.

To determine if an expression or communication could be perceived as a threat of reprisal or force, or a promise of benefit, PERB evaluates whether the employer’s conduct reasonably tends to interfere with, restrain, or coerce employees in the exercise of protected rights. In making that determination, PERB will consider:

1. The accuracy of the statement;
2. The context in which the statement occurred;
3. The impact that such communication had or is likely to have on the employee who may be more susceptible to intimidation or receptive to the coercive import of the employer’s message; and
4. The effect on the authority of the exclusive representative.

In evaluating the above factors, it does not matter whether the supervisor or manager intended to engage in conduct that could be perceived as intimidating, or whether any employee was actually intimidated or deterred; appearance and tendency are enough.

Here are a few examples where PERB has found that employer statements constituted an unlawful threat or reprisal:

• A Board member’s statement that a union member who posted a photo and expressed safety concerns on social media was engaging in “political theater” which was “not acceptable.”[2]
• A supervisor’s email claiming that the union “let down” employees in a “huge way” by “manipulating the facts and context to serve half-truths.”[3]
• A supervisor’s instructions to a bargaining unit member to interrupt a Union meeting and warn all new teachers and non-tenured teachers not to be influenced by the Union or else risk losing their jobs. New teachers were told, “If you know what’s good for you, you better leave now.”[4]
• A Human Resources Director’s statement to a union representative that, “You will get certification the day that I die or retire,” in response to a petition for certification of a bargaining unit, after referring to a competing union as the HR Director’s “favorite union.”[5]
• Threatening employees with layoff immediately prior to union election. Specifically, the General Manager told employees if they went with the union, funds would be depleted and there would be layoffs. The General Manager further said he was “disappointed” at the costs caused by the appearance of a union.[6]
• Advising employees that they were bound by a no-strike cause, and that strikes of any kind were prohibited and would result in discipline, where the intent of the statement was to dissuade employees from engaging in a sympathy strike. Because the MOU did not ban sympathy strikes and employees had a right to engage in sympathy strikes, the memo reasonably tended to coerce or intimidate employees against the exercise of rights protected by law.[7]
• Marking an employee down on her annual evaluation in the area of professional relations for taking workplace issues directly to her union. The evaluation stated, “By not following established procedures, problems are difficult to address in a timely and efficient manner. Issues that you carry to Price Club and to ETA meetings, for example, before they have gone through channels at the site, waste the time of people involved, and can result in misunderstandings, and frustration.”[8]
• A District letter threatening discipline for any employee who engaged in informational picketing.[9]

PERB has found statements like those listed above to chill protected rights. If a reasonable employee could perceive the comment as threatening harm tied to protected union activity, PERB will find a violation.

Employers sometimes trip over the flip side of threats—promises of benefit intended to coax employees away from the union. Examples include telling workers they will get special consideration or additional compensation if they forego filing a grievance or drop a representation petition. PERB treats such inducements as equally coercive because they create the impression that terms and conditions of employment depend on abandoning protected rights. Even informal statements like “Let’s settle this informally—no need to involve the union,” can cross the line; again, intent is irrelevant.

California’s public sector labor laws hold supervisors and managers to a high standard. Because PERB applies an objective, employee-focused test, good intentions are not a defense. Any promise of special treatment, or even a hint of reprisal can create agency liability.

With disciplined communication practices, and by involving HR and Employee Relations early on, supervisors and managers can maintain productive relationships with represented employees without infringing on protected rights. In the end, a measured approach is a strategic investment in stable labor relations, organizational credibility, and public trust.

[1] Starbucks Corporation (2024) 373 NLRB No. 123.

[2] Alameda Health Systems (2023) PERB Dec. No. 2856-M.

[3] City of San Diego (2020) PERB Dec. No 2747-M.

[4] Compton USD (2003) PERB Dec. No. 1518.

[5] County of Riverside (2010) PERB Dec. No 2119-M.

[6] Coachella Valley Mosquito and Vector Control District (2009) PERB Dec. No. 2031M* * * OVERRULED IN PART by City of Roseville (2016) PERB Decision No. 2505-M.

[7] City and County of San Francisco (2017) PERB Dec. No 2536-M.

[8] Empire Union School District (2004) PERB Dec. No. 1650E.

[9] San Marcos Unified School District (2003) PERB Dec. No 1508.