Employers often worry that attendance enforcement after a union campaign will be portrayed as retaliation. A recent National Labor Relations Board administrative law judge decision involving a Memphis Starbucks store offers reassurance and guidance, as the judge rejected all unfair labor practice allegations and dismissed the complaint. The case involved a unionized store, a pro-union shift supervisor, and multiple disciplinary steps under the company’s attendance and punctuality policy.
The Acting General Counsel alleged that Starbucks unlawfully changed its “past practice” by suddenly enforcing attendance more strictly to punish union activity and Board participation. The judge found instead that the written attendance policy remained unchanged and that a new store manager legitimately chose to prioritize enforcement of that existing policy. The record also showed prior attendance-related discipline by earlier managers, undercutting the idea that there had been a consistent, more lenient practice that required bargaining to change.
The General Counsel further argued that discipline issued to a pro-union shift supervisor, who had been involved in organizing, picketing, and NLRB proceedings, was discriminatory. The judge rejected that claim too, pointing to multiple corrective actions issued to various employees (not just union supporters) for similar attendance violations over the same period. There was no credible evidence that the manager’s decisions were driven by anti-union animus rather than documented tardiness, including an opening shift where the store opened late because the keyholder arrived over an hour late.
The decision also addressed alleged unlawful surveillance of a strike and “march on the boss.” Because the employer had a two-employee safety rule requiring the manager to leave the store when other employees walked out, the manager waited in his car and was only occasionally visible to the picketers. The judge held that such limited, safety-driven observation was not out of the ordinary and did not amount to coercive surveillance of protected activity.
Bottom Line
For employers dealing with unions, the case underscores several practical points: keep written policies stable and clear, train new managers to enforce those policies consistently, document discipline for all employees—not only union supporters—and avoid tying any disciplinary conversation to union or Board activity. With careful documentation and neutral application of existing rules, employers can enforce attendance and performance standards, even in highly charged organizing environments, while maintaining strong defenses before the NLRB. Please contact our office if you have questions about how this pertains to your place of business and how we may be able to help.