Can an employer demand that its employees be cheerful and pleasant to customers? Can an employer mandate a policy of “good morale?” It seems rather obvious that friendliness and good customer service skills are essential for customer-facing roles, particularly in a retail environment. In recent years, however, the National Labor Relations Board (“NLRB”) has attacked employers’ policies that could be interpreted as requiring employees to be good spirits and/or to refrain from complaint. The NLRB’s rationale for its campaign is that employees have a right under Section 7 of the National Labor Relations Act (“NLRA”) to collectively discuss working conditions, even if that discussion includes complaint or unhappiness. If a policy prohibits complaint, it may be seen as having a chilling effect on workers’ Section 7 rights. Whither then Trader Joe’s, bastion of the good-vibe shopping experience?
At issue here is a Trader Joe’s employee in New York City, Thomas Nagle, who has filed an unfair labor practice (“ULP”) charge with the NLRB alleging he repeatedly was reprimanded because his friendliness was not “genuine.” He was terminated in September for having an overly negative attitude. In his past several employee evaluations, he was noted as generally performing well but not being friendly enough.
So what exactly does the company want? Trader Joe’s employee handbook reportedly explains that the company seeks to create a “wow” shopping experience through the “feelings a customer gets about their delight that they are shopping with us.” Nagle alleges that company postings and announcements read to staff further advance an agenda of requisite good morale and friendliness. In addition to this focus on pleasantness, Nagle also has alleged that Trader Joe’s created an environment of surveillance, that it discouraged employees from speaking to one another even when customers were not present, that stockroom conditions were dangerous, and that employees were “harassed” by managers. He specifically alleged that Trader Joe’s employees were instructed to have a “positive attitude,” a phrase which has been a flashpoint for the NLRB’s attack on morale policies in recent years.
It is no coincidence that Trader Joe’s stores in Manhattan, where Nagle worked, have been an active site of union organizing activity. According to workers, the organizing has contributed additional tension to the stores that already were some of the company’s busiest in the nation. In fact, the Retail, Wholesale and Department Store Union is providing Nagle with his legal representation. Nagle says that the union reached out to workers at his store “as conditions worsened.” Nagle has not accused Trader Joe’s of having prohibited employees from unionizing or discussing joining a union. None of his allegations address any direct or express attempt by the company to prevent either union organization or employees’ discussion of working conditions. In recent years, however, the NLRB has found numerous employer policies to be in violation of the NLRA even if they do not directly discourage union organizing, and in doing so, it has taken an extremely expansive view of when a policy might chill Section 7 rights.
In response to Nagle’s ULP, Trader Joe’s has issued the following statement: “We do not fire crew members for trivial reasons. We pride ourselves on operating our business with integrity and adhering to the law at all times.”
Much of the information coming from Nagle has not come from the charge itself, but rather from the many interviews he has done since filing the ULP. In support of his position, he has been accompanied by his girlfriend, also a former Trader Joe’s employee, who has corroborated his story to the media. At the same time, a number of Trader Joe’s employees from New York and elsewhere have spoken to the media about their employment. Some say that they have had great experiences working for Trader Joe’s, while others report less favorable experiences. Such contradiction is unsurprising for a large employer such as Trader Joe’s, which employs over 35,000 employees in the United States. Job search site Indeed reports an aggregate job rating for Trader Joe’s of 4.2 out of a possible 5 stars, and Trader Joe’s has won a number of plaudits from a wide variety of groups and organizations, including being named #20 on Forbes’ 2016 “Best Employers in America” list. Of course none of that is likely to affect the NLRB with regard to the current legal issue here, which is whether Trader Joe’s actually has committed an unfair labor practice and infringed upon workers’ Section 7 rights under the NLRA through its policies and practices. It will be interesting to watch as this story continues to develop.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including employee handbooks, legal compliance, NLRA matters and defending Unfair Labor Practice claims, for almost sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.