# Justice Department At War With Judges & Starbucks Strikes

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 14 Nov 2025, 31 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/6b97bb9a-143f-4a55-a769-b395010e9571/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Federal judge John E. Jones III, formerly of the U.S. District Court for the Middle District of Pennsylvania, discusses the second-in-command at the Justice Department, Todd Blanche, saying the department is at war with federal judges. Labor and employment law expert Kate Andrias, a professor at Columbia Law School, discusses the continuing legal battles between Starbucks and unionized workers. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
[0:12] Speaker 2: It's a war man.
[0:15] Speaker 3: That's Todd Blanche, the second in command at the Justice Department,
[0:19] Speaker 3: saying the department is at war with federal judges. Blanche,
[0:24] Speaker 3: echoing words often used by President Trump and Attorney General
[0:28] Speaker 3: Pam Bondi, criticized rogue activist judges for their decisions against
[0:34] Speaker 3: the Trump administration.
[0:37] Speaker 2: These activist judges that they have a RoboN, but they
[0:43] Speaker 2: are more political, or certainly as political as the most
[0:47] Speaker 2: liberal governor of da.
[0:50] Speaker 3: Speaking at a Federalist Society event, the Deputy Attorney General
[0:54] Speaker 3: defended the Justice Department against claims of weaponization and then
[0:59] Speaker 3: urged young conservative lawyers to join the war against judges.
[1:04] Speaker 2: And I looked around, and I said to myself, man,
[1:07] Speaker 2: there has got to be a couple dozen young lawyers
[1:12] Speaker 2: who are thirsty and hungry and ready to work because
[1:16] Speaker 2: we need you, because because it is a war.
[1:19] Speaker 3: Well, a group of federal judges is pushing back against Blanche,
[1:24] Speaker 3: saying the language he used poses a grave threat to
[1:28] Speaker 3: the rule of law, and the judiciary joining me from
[1:32] Speaker 3: the keep our Republic's Article three coalition is retired Judge
[1:36] Speaker 3: Johnny Jones, the third formerly of the US District Court
[1:40] Speaker 3: for the Middle District of Pennsylvania. Judge Jones, First, your
[1:45] Speaker 3: reaction to the Deputy Attorney General saying that the Justice
[1:48] Speaker 3: Department is at war with the judiciary.
[1:52] Speaker 4: I think that the comment is at minimum ment opportunity,
[1:56] Speaker 4: and I think writ large, it's grossly respond for the
[2:00] Speaker 4: number two individual at the Department of Justice to characterize
[2:06] Speaker 4: anything involving the federal judiciary as a war at war
[2:10] Speaker 4: against so called rogue judges. It is highly problematic and
[2:15] Speaker 4: I think it's causing a great deal of consternation among
[2:18] Speaker 4: the judiciary, not just active judges, but retired judges as well.
[2:22] Speaker 3: He said, we have judges literally telling the president the
[2:26] Speaker 3: executive what he can and cannot do. We have seen
[2:29] Speaker 3: judges not following the law on the Constitution, and he
[2:32] Speaker 3: said they have a row bomb. But they are more political,
[2:35] Speaker 3: or certainly as political as the most liberal governor or
[2:38] Speaker 3: da Well.
[2:40] Speaker 4: June, here's a newsflash. That's exactly what judges are supposed
[2:44] Speaker 4: to do, is say what the law is. They've been
[2:46] Speaker 4: interpreting the law, of course since Marbury versus Madison. And again,
[2:51] Speaker 4: I think he's protesting too much. What he's really striking
[2:55] Speaker 4: out against our decisions that are, in the judges view,
[2:58] Speaker 4: in accordance with the law and legal precedent. Simply because
[3:02] Speaker 4: you disagree with the decision doesn't mean that you're at
[3:05] Speaker 4: war with the judge who made the call. The government
[3:09] Speaker 4: is fully able to exercise its appellate rights, and in
[3:12] Speaker 4: fact they have in any number of these cases. So
[3:16] Speaker 4: you know, to say that judges are political simply because
[3:19] Speaker 4: they rendered a decision that you don't agree with is
[3:22] Speaker 4: really a baseless allegation. I guess red meat, if you will,
[3:26] Speaker 4: for the conservative lawyers in the Federalist society, But I
[3:31] Speaker 4: would suspect that a lot of those lawyers entertained, though
[3:34] Speaker 4: they may have been no better.
[3:37] Speaker 3: So his target was sort of on the district court judges,
[3:40] Speaker 3: the trial court level, and he said that when it
[3:44] Speaker 3: gets to the Supreme Court, the Supreme Court has reversed
[3:47] Speaker 3: them all except for one or two times, which is true,
[3:50] Speaker 3: but that assumes that the conservative majority on the Supreme
[3:54] Speaker 3: Court is right and the federal district judges are wrong.
[3:58] Speaker 3: And these decisions were all made on the emergency docket
[4:02] Speaker 3: without full briefing or oral arguments.
[4:05] Speaker 4: Well, a couple of things I'd say about that, there
[4:08] Speaker 4: are far more decisions that are standing than ones that
[4:11] Speaker 4: are appealed to the Supreme Court. As you know, that
[4:14] Speaker 4: court has a discretionary docket. So some of these lower
[4:16] Speaker 4: court decisions have stood up simply because the Supreme Court
[4:21] Speaker 4: hasn't taken them. Now, it is noteworthy that the Supreme
[4:24] Speaker 4: Court has placed on its emergency dock at a number
[4:27] Speaker 4: of different cases. And yes, the government has been successful.
[4:31] Speaker 4: I don't know that it's necessary under the circumstances for
[4:34] Speaker 4: mister blanche, you know, to be a sore winner and
[4:37] Speaker 4: do a sort of victory dance about that and castigate
[4:40] Speaker 4: lower court judges. You know, the Supreme Court gets the
[4:42] Speaker 4: final word on these cases. But I can go over
[4:45] Speaker 4: any number of cases that district courts have heard and
[4:48] Speaker 4: have indicated that those decisions are in accordance with precedent
[4:52] Speaker 4: and the law under the circumstances. You know, these are
[4:56] Speaker 4: close questions in some cases as well. But again, this
[4:59] Speaker 4: sort of or winterer thing is pretty wearying and unbecoming. Again,
[5:03] Speaker 4: i'd say the Department of Justice that I knew and
[5:07] Speaker 4: worked with and was very professional during my nearly two
[5:10] Speaker 4: decades on the federal bench.
[5:12] Speaker 3: The number of threats against federal judges have skyrocketed. As
[5:16] Speaker 3: you know, what does it do when you have the
[5:18] Speaker 3: second in command saying things like this, saying, you know,
[5:21] Speaker 3: we're at war, saying that judges are not following the law,
[5:25] Speaker 3: they're not following what the Supreme Court says. What does
[5:29] Speaker 3: that do when the general public hears something.
[5:32] Speaker 4: Like that, Well, you have to take it in concert
[5:35] Speaker 4: June with what's been happening for this entire year since
[5:39] Speaker 4: January twentieth, which is that judges are being singled out
[5:42] Speaker 4: by name, their families are being singled out, they're being docked.
[5:46] Speaker 4: Anybody can find the location of a judge, even though
[5:49] Speaker 4: there's been legislation to redact and hide some of their
[5:52] Speaker 4: personal information, and I think fairly judges are frightened. It
[5:56] Speaker 4: puts a bullseye on judges, and you correctly site the
[6:00] Speaker 4: US Marshall Service as indicated that threats against judges there
[6:05] Speaker 4: were five hundred plus bona fide threats in the last
[6:07] Speaker 4: fiscal year, and they're growing exponentially. I've always said that,
[6:12] Speaker 4: you know, there are a lot of people that disagree
[6:13] Speaker 4: with judges' decisions, that's the nature of the business. But
[6:16] Speaker 4: it's that small percentage of unbalanced people who kind of
[6:19] Speaker 4: hear this as a dog whistle. And I have said
[6:23] Speaker 4: for years, because of this employmentatory rhetoric, that we're going
[6:26] Speaker 4: to get a judge hurt or killed. You need only
[6:29] Speaker 4: look back at my former colleague, Ester Sallus's tragedy. You
[6:33] Speaker 4: know where son Danny was was shot and killed back
[6:35] Speaker 4: in twenty twenty. I fear that's going to happen again
[6:39] Speaker 4: if we don't dial down the rhetoric again. This goes
[6:42] Speaker 4: to the irresponsibility of mister Blanche's comments. We need to
[6:45] Speaker 4: level set here instead of making it worse.
[6:48] Speaker 3: And to put this in context, these weren't casual remarks
[6:53] Speaker 3: because we've heard similar remarks from the Attorney General, Pam Bondy.
[6:58] Speaker 3: She's actually called out individual judges for their decisions and
[7:04] Speaker 3: the President himself. Is there some kind of strategy at
[7:09] Speaker 3: play here by the Justice Department? Are they trying to
[7:11] Speaker 3: scare judges? What's at play?
[7:14] Speaker 4: Well, if they're trying to scare judges, that won't work
[7:16] Speaker 4: because I think fairly my friends and former colleagues and
[7:21] Speaker 4: the judiciary are not easily frightened sure. I mean, there
[7:24] Speaker 4: may be a motivation to have them look over their shoulders.
[7:27] Speaker 4: I think what it is is it tears down the
[7:30] Speaker 4: integrity of the judicial system. All three branches, I think,
[7:34] Speaker 4: at bottom, have a responsibility to uphold the integrity of
[7:38] Speaker 4: their existence as coequal branches of government. We are seeing
[7:42] Speaker 4: this unitary president going wild. Now there's another problem here, June,
[7:48] Speaker 4: and I think it's that we are losing any line
[7:52] Speaker 4: of distinction between the President and the Department of Justice.
[7:56] Speaker 4: Of course, not naive. There's always some interaction between the
[7:58] Speaker 4: President and the Department of Justice, but they've almost become
[8:02] Speaker 4: one and the same, which I think is truly troubling.
[8:05] Speaker 4: So this is the number two man, and in fact
[8:08] Speaker 4: the Attorney General doing the bidding for the President of
[8:10] Speaker 4: the United States and simply parroting his view of federal
[8:14] Speaker 4: judges and carrying out We know this now because we've seen,
[8:19] Speaker 4: you know, some of the things that the president has
[8:21] Speaker 4: written and thought that he was playing to an audience,
[8:24] Speaker 4: for example General Bondi and instructing them to prosecute people.
[8:29] Speaker 4: I think my conservative lawyer friends, you know, for example,
[8:32] Speaker 4: who listened to Todd Blanche ought to be careful what
[8:35] Speaker 4: they wish for, because in a world like that, I
[8:38] Speaker 4: don't think anybody is particularly safe.
[8:41] Speaker 3: And Blanche denied that the Justice Department was being weaponized,
[8:44] Speaker 3: and he said the Justice Department had been weaponized before
[8:48] Speaker 3: in the Biden administration. And then he talked about the
[8:52] Speaker 3: prosecutions against Trump. Of course, he didn't address the prosecutions
[8:59] Speaker 3: against former FBI Director James Comy and New York Attorney
[9:03] Speaker 3: General Letitia James.
[9:05] Speaker 4: My response to that, June is, you know, I saw
[9:08] Speaker 4: in the news a little earlier today that there was
[9:10] Speaker 4: a statement bayded by the New York Bar Association criticizing Blanche,
[9:14] Speaker 4: and his response was LOL. To that, well, my response
[9:17] Speaker 4: to what mister Blanche said about weaponization is LOL. You know,
[9:21] Speaker 4: it's the same thing. If this isn't weaponizing the Justice Department.
[9:24] Speaker 4: You know, people may disagree or agree about weaponization during
[9:28] Speaker 4: the Biden administration. I'm talking about the here and now.
[9:31] Speaker 4: I don't think we've seen a stark a weaponization of
[9:34] Speaker 4: the Department of Justice ever. Think about the DOJ as
[9:38] Speaker 4: it participated in the efforts the executive orders against law firms.
[9:43] Speaker 4: You know, they litigated those cases. You know, it was
[9:45] Speaker 4: lawyer on lawyer through that. You know, think about mister
[9:48] Speaker 4: Blanche traveling to federal prison to see Glaine Maxwell and
[9:53] Speaker 4: getting a statement from her. We know now that he
[9:56] Speaker 4: probably had access to emails that directly contradict did what
[10:00] Speaker 4: she apparently told him, looking like every bit the president's
[10:05] Speaker 4: personal lawyer instead of the number two man at Justice.
[10:08] Speaker 4: I mean, we're in a world that is vastly different
[10:10] Speaker 4: than anything I've ever seen in terms of the interaction
[10:14] Speaker 4: between the Justice Department and the courts. When I was
[10:17] Speaker 4: a judge, by the way, you know, I thought federal
[10:19] Speaker 4: judges had pretty enormous power to be used very sparingly
[10:22] Speaker 4: and carefully. We're now living in a time when essentially
[10:26] Speaker 4: the President of the United States and the Department of Justice,
[10:29] Speaker 4: they're saying, in as many words, just disregard district court judgments.
[10:33] Speaker 4: They're not worth the electronic ink that's being used to
[10:37] Speaker 4: render them. I don't think that that's helpful or appropriate
[10:41] Speaker 4: in any way in terms of integrity of the third
[10:44] Speaker 4: branch of government.
[10:45] Speaker 3: Judge Jones, he didn't just attack judges. He also attacked
[10:49] Speaker 3: the bar associations. And explain this to me if you can.
[10:52] Speaker 3: He vowed to take away the bar association's oversight power,
[10:56] Speaker 3: saying that the DOJ would now be reviewing complaints in
[11:00] Speaker 3: house first with its ethics department, which I'm not sure
[11:04] Speaker 3: exists anymore because the head of it was fired a
[11:07] Speaker 3: while back. Aren't the complaints against Justice Department lawyers filed
[11:12] Speaker 3: with the bar associations? I mean, does the Justice Department
[11:16] Speaker 3: have any power here?
[11:18] Speaker 4: I confess June to confusion about as well, about how
[11:21] Speaker 4: that could be accomplished, because you're a member of a
[11:24] Speaker 4: bar association, and you know, in Pennsylvania, for example, the
[11:29] Speaker 4: Pennsylvania Bar Association police is its own and they can
[11:32] Speaker 4: deprive you, suspend you. The Supreme Court of Pennsylvania can
[11:36] Speaker 4: get involved and suspend your right to practice for a period,
[11:40] Speaker 4: or they can disbar you. So good luck with that.
[11:43] Speaker 4: I don't know how you do that at all. You know,
[11:45] Speaker 4: not only is it I think an overreach from a
[11:48] Speaker 4: rhetorical standpoint, but I think it's it's mission impossible. So
[11:52] Speaker 4: I confess I don't know what he has in mind.
[11:54] Speaker 3: There and your group. The Article three Coalition has responded
[11:58] Speaker 3: to Blanche's remarks.
[11:59] Speaker 4: The Article three Coalition, of course, put out a statement today.
[12:03] Speaker 4: You know this is fifty judges banding together retired judges.
[12:07] Speaker 4: I should say that this is something that we feel
[12:11] Speaker 4: in unanimity that is really injurious to the rule of law.
[12:16] Speaker 4: And you know, if you can get fifty retired, you know,
[12:21] Speaker 4: thoughtful appointed by different presidents, you know, folks at different
[12:24] Speaker 4: viewpoints going the same direction. Like this you're doing. You've
[12:28] Speaker 4: got something that that is really really problematic, and you know,
[12:32] Speaker 4: I was proud to join that group. I fear it's
[12:35] Speaker 4: going to get worse before it gets better, and that's
[12:38] Speaker 4: really troubling.
[12:39] Speaker 3: Well, thank you for sharing your concerns and insights with us.
[12:43] Speaker 3: That's Judge Johnny Jones. The third unionized Starbucks workers went
[13:01] Speaker 3: on strike at stores in forty five cities today to
[13:05] Speaker 3: protest what they call the company's union busting and failure
[13:08] Speaker 3: to finalize a union deal. Starbucks workers first voted to
[13:13] Speaker 3: unionize at a store in Buffalo back in twenty twenty one.
[13:17] Speaker 3: Four years later, around five hundred and fifty Starbucks stores
[13:21] Speaker 3: are unionized, but the company still hasn't reached a contract
[13:25] Speaker 3: agreement with the union. Starbucks Workers United accuses the heads
[13:30] Speaker 3: of the coffee giant of stone walling baristas on their
[13:33] Speaker 3: demands for better hours and better pay, and the resolution
[13:37] Speaker 3: of hundreds of outstanding unfair labor practice charges. And on
[13:41] Speaker 3: the legal front, Starbucks and the National Labor Relations Board
[13:46] Speaker 3: squared off in a federal appeals court for the eighth
[13:49] Speaker 3: time in the last two and a half years, with
[13:52] Speaker 3: even more cases on deck stemming from the coffee chain's
[13:56] Speaker 3: aggressive pushback against union organizing. My guest is labor and
[14:01] Speaker 3: employment law expert Kate Andreas, a professor at Columbia Law School.
[14:06] Speaker 3: So this is the eighth federal appeals court argument in
[14:10] Speaker 3: the last two and a half years. They're arguing two
[14:13] Speaker 3: more cases at the Fifth Circuit next month, and there
[14:16] Speaker 3: are five other pending appellate court cases. I mean, is
[14:20] Speaker 3: this number of federal appellate court cases unusual for a company?
[14:25] Speaker 3: It sounds like a lot.
[14:26] Speaker 1: It is unusual, And I think there's three things going on.
[14:29] Speaker 1: One is that there's been a massive effort at organizing
[14:33] Speaker 1: among the workers. We went from having zero Starbucks stores
[14:36] Speaker 1: organized back in early twenty twenty one to the numbers
[14:41] Speaker 1: are disputed, but it looks like about six hundred and fifty.
[14:43] Speaker 1: So just that volume of organizing produces a lot of
[14:46] Speaker 1: legal issues. The second thing I think is going on
[14:49] Speaker 1: is that Starbucks has violated the law, or at least
[14:52] Speaker 1: allegedly violated the law in many ways across the country,
[14:56] Speaker 1: and so that produces a lot of legal cases. But
[14:58] Speaker 1: the third thing, and this came through at the oral
[15:01] Speaker 1: argument yesterday, is that the legal landscape is shifting, and
[15:05] Speaker 1: so there's a lot more opportunity to challenge long standing
[15:08] Speaker 1: board precedent, both because of changes with the Executi branch
[15:13] Speaker 1: and the administration, but also because of changes at the
[15:15] Speaker 1: Supreme Court with administrative law.
[15:17] Speaker 3: And Starbucks workers first voted to unionize at a store
[15:20] Speaker 3: in Buffalo in twenty twenty one. They're striking today in
[15:24] Speaker 3: more than twenty five cities. They've been negotiating, I take it,
[15:28] Speaker 3: but they haven't been able to reach an agreement yet.
[15:31] Speaker 1: Exactly. Yeah, I mean, I think the workers are striking
[15:34] Speaker 1: for really two reasons. One is to protest the unfair
[15:36] Speaker 1: labor practices committed by the company, and the others to
[15:39] Speaker 1: try to achieve a fair contract. And their demands include
[15:43] Speaker 1: higher wages and more fair scheduling and things like that.
[15:47] Speaker 1: The law requires the company to bargain in good faith,
[15:52] Speaker 1: but it doesn't create a mechanism to impose a contract,
[15:56] Speaker 1: and so it's not uncommon for it to take a
[15:58] Speaker 1: long time to reach a first contract because frequently employers
[16:01] Speaker 1: really resist negotiating a first contract, and the law doesn't
[16:05] Speaker 1: give the workers a lot of mechanisms to force that.
[16:08] Speaker 1: The mechanism is to exercise economic pressure through a strike
[16:11] Speaker 1: and through trying to put public pressure on a company,
[16:13] Speaker 1: and that's what they're trying to do.
[16:15] Speaker 2: Now.
[16:15] Speaker 1: It's really fairly remarkable to see this much organizing, especially
[16:19] Speaker 1: by young people across the country, and this is an
[16:21] Speaker 1: expression of their effort to improve their jobs.
[16:25] Speaker 3: They've struck on Red Cup Day for the last four years.
[16:29] Speaker 3: I don't know is it getting across to the public.
[16:31] Speaker 3: Is Starbucks suffering at all?
[16:34] Speaker 1: I think one difference, and we'll see if it ultimately
[16:36] Speaker 1: makes a difference, is that they continue to organize more stores.
[16:39] Speaker 1: So now we're talking about over six hundred stores organized,
[16:42] Speaker 1: and in order to really make an economic difference for
[16:44] Speaker 1: the company, it has to be big and it has
[16:46] Speaker 1: to affect a lot of the stores.
[16:49] Speaker 3: Let's talk about the case at the second circuit, where
[16:52] Speaker 3: the issue is the wearing of Union T shirts and buttons.
[16:56] Speaker 3: The average person might say, Okay, they can't wear you
[17:00] Speaker 3: onon T shirts or buttons. I can't wear certain things
[17:03] Speaker 3: at work either. Why is this so important that there
[17:06] Speaker 3: have been so many cases about it?
[17:09] Speaker 1: Yeah, so absolutely right. I mean, in most work sites,
[17:12] Speaker 1: when there's no union and no union organizing, employers pretty
[17:15] Speaker 1: much have the right to do whatever they want. They
[17:18] Speaker 1: can't discriminate on basis of race or sex or something
[17:21] Speaker 1: like that, but they can tell workers what to wear,
[17:22] Speaker 1: what time to show up, when to go to the bathroom,
[17:25] Speaker 1: track people's movements with AI and other technology. But the
[17:30] Speaker 1: law creates protections for the right to organize. The National
[17:33] Speaker 1: Labor Relations Act, which was passed in nineteen thirty five,
[17:37] Speaker 1: gives workers a right to engage in concerted action for
[17:40] Speaker 1: mutual aid or protection. And that means that workers have
[17:43] Speaker 1: the right to get together to organize a union, or
[17:45] Speaker 1: to get together to just try to improve their jobs.
[17:48] Speaker 1: And all the way back to the early days of
[17:51] Speaker 1: the National Labor Relations Act, the Board and the Supreme
[17:55] Speaker 1: Court have held that part of that right is to
[17:58] Speaker 1: engage an expression of support for union activity, including by
[18:02] Speaker 1: wearing union buttons, union T shirts, and other union insignia.
[18:07] Speaker 1: At the same time, the Board and the court have said, well,
[18:10] Speaker 1: we have to balance that interest with employer's interests in
[18:13] Speaker 1: managing the work site. So basically the approach has been
[18:17] Speaker 1: to balance worker's right to engage in concerted activity, to
[18:21] Speaker 1: join a union and should show their support for the union,
[18:25] Speaker 1: even if otherwise the employer might prohibit wearing buttons with
[18:29] Speaker 1: employer's right to manage their work sites. And to do that,
[18:33] Speaker 1: it's been for many, many decades, the board's rule has been,
[18:36] Speaker 1: there's a presumption in favor of allowing workers to wear
[18:39] Speaker 1: buttons or union t shirts or other union insignia in
[18:43] Speaker 1: order to mindicate their right to organize. However, if the
[18:47] Speaker 1: employer can show that there's a special exception that means
[18:51] Speaker 1: that particular workers should not be allowed to wear union
[18:55] Speaker 1: buttons or union insignia, then the employer can prohibit them
[18:59] Speaker 1: or can limit them. Certain special exceptions include things like
[19:03] Speaker 1: patient care and hospitals, and also sometimes include public facing
[19:09] Speaker 1: jobs like at Starbucks. So what Starbucks is saying here
[19:12] Speaker 1: is is this a public facing job. Our image is important,
[19:15] Speaker 1: and so we can limit the extent to which workers
[19:18] Speaker 1: can show their support for the union.
[19:20] Speaker 3: And is it about wearing a union t shirt and
[19:23] Speaker 3: more than one union button.
[19:25] Speaker 1: Yeah, the Starbucks rule is that workers can wear only
[19:29] Speaker 1: one union button and they cannot wear any T shirts
[19:32] Speaker 1: with messages other than messages the company has approved. So
[19:37] Speaker 1: that's what makes the case a bit complicated. If the
[19:40] Speaker 1: Starbucks rule was no messages at all, or no different
[19:43] Speaker 1: T shirts at all, or no union buttons at all,
[19:45] Speaker 1: the whole analysis might be easier. But basically, they're saying
[19:48] Speaker 1: you can wear one union button and no union T shirts,
[19:51] Speaker 1: and the board says that there's a right to wear
[19:54] Speaker 1: union T shirts, there's a right to wear union buttons,
[19:56] Speaker 1: and you haven't shown that there's a special exception for you,
[20:00] Speaker 1: because in fact, you allow workers to wear T shirts
[20:04] Speaker 1: with messages. Workers at Starbucks are allowed to wear various
[20:07] Speaker 1: messages that are approved by the company. So that's the cruxit.
[20:11] Speaker 1: The issue, I think, stepping back, what's really at stake
[20:14] Speaker 1: and what kind of came through in the argument is
[20:16] Speaker 1: to what extent workers are going to continue to have
[20:19] Speaker 1: the right to engage in pro union expression at work
[20:22] Speaker 1: versus how much is an employer able to control that
[20:25] Speaker 1: or to limit it, even if it doesn't have a
[20:27] Speaker 1: really good reason for doing so. And the Court of
[20:31] Speaker 1: Appeals appear to be quite sympathetic to the employer's desire
[20:36] Speaker 1: to control what workers are wearing, even if it limits
[20:40] Speaker 1: their ability to engage in union expression, especially because here
[20:43] Speaker 1: there was some limited right to wear a union button.
[20:46] Speaker 3: Coming up next on the Bloomberg Law Show, I'll continue
[20:48] Speaker 3: this conversation with Columbia Law School professor Kate Andreas. We'll
[20:53] Speaker 3: talk about how a recent Supreme Court decision may play
[20:57] Speaker 3: in the case at the Second circuitue and you're listening
[21:01] Speaker 3: to Bloomberg, a federal appeals court expressed skepticism toward the
[21:08] Speaker 3: National Labor Relation Board's precedent for employee dress codes that
[21:13] Speaker 3: it applied to rule against Starbucks. The case before the
[21:17] Speaker 3: Second Circuit centers on the nrb's ruling last year that
[21:22] Speaker 3: Starbucks illegally prohibited shirts with graphics on them, including union insignia,
[21:28] Speaker 3: and the board also found fault with the company banning
[21:31] Speaker 3: workers from wearing more than one pin related to labor
[21:35] Speaker 3: organizing or any advocating for personal, political, or religious issues.
[21:41] Speaker 3: I've been talking to professor Kate Andreas of Columbia Law School. So, Kate,
[21:46] Speaker 3: this was before the Second Circuit in Manhattan, but in
[21:50] Speaker 3: twenty twelve, didn't they already uphold the Starbucks policy to
[21:55] Speaker 3: wear only one union pin.
[21:57] Speaker 1: They did, but they did so in a different circuit
[22:00] Speaker 1: from stance, a different store with a different background uniform rule.
[22:05] Speaker 1: So in that other store, there wasn't the right to
[22:07] Speaker 1: wear all these other buttons and all these other messages.
[22:09] Speaker 1: And so here what the Board is saying is you
[22:11] Speaker 1: have a different uniform policy here where you allow a
[22:14] Speaker 1: lot of messages and you allow all these buttons. This
[22:17] Speaker 1: doesn't kind of meet the same requirement.
[22:20] Speaker 3: So is this the same issue that the Fifth Circuit
[22:23] Speaker 3: and the Eighth Circuit ruled on? Is it the exact
[22:26] Speaker 3: same issue?
[22:27] Speaker 1: It's similar. It's not the exact same issue because the
[22:29] Speaker 1: facts are very different in the different cases, but it's
[22:32] Speaker 1: a similar issue, Which is is the board's long standing
[22:36] Speaker 1: rule now granted during the Trump admitisation, there was a
[22:38] Speaker 1: brief period where this rule wasn't in place, but it's
[22:41] Speaker 1: been a long standing rule that makes it very hard
[22:43] Speaker 1: for employers to limit the extent to which workers can
[22:46] Speaker 1: wear union insignia. Is that going to stand or are
[22:50] Speaker 1: the courts that feels going to limit that rule and
[22:53] Speaker 1: give employers more ability to restrict what workers can do,
[22:57] Speaker 1: and different versions of that issue have come up with
[23:00] Speaker 1: different sets of facts, but that's coming up in numerous differencer.
[23:04] Speaker 3: So I haven't been to this Starbucks, but it sounds unique.
[23:08] Speaker 3: Former CEO Howard Schultz compared it to Willie Wonka having
[23:12] Speaker 3: built the ultimate coffee shop instead of a chocolate factory,
[23:16] Speaker 3: and it has an overall quote steampunk, hipster chic design esthetic.
[23:22] Speaker 3: So Second Circuit Judge Susan Carney, an Obama appointee, said
[23:27] Speaker 3: that Starbucks imposing this dress code in accordance with a
[23:31] Speaker 3: general desire to create a vibe for this retail establishment,
[23:36] Speaker 3: seems to be a reasonable position. However, she also said
[23:39] Speaker 3: it's kind of inconsistent with the notion that no personal
[23:43] Speaker 3: or cause oriented messages can be displayed because of the
[23:47] Speaker 3: steampunk hip vibe, when in fact there's a lot of
[23:50] Speaker 3: other kinds of social issue messaging that Starbucks is allowing.
[23:54] Speaker 3: But another judge, William Nardini, a Trump appointee, said, do
[24:00] Speaker 3: do workers have a right to wear union hats and
[24:02] Speaker 3: giant blinking signs sandwich boards that say hooray for the union?
[24:08] Speaker 3: Did it seem like the judges were not sympathetic to
[24:10] Speaker 3: the union and the NLRB.
[24:13] Speaker 1: Here, yeah, I mean I think well, first at Carney's
[24:16] Speaker 1: point seemed to be, look, you're allowing all these other messages,
[24:19] Speaker 1: so why not allow union t shirts? But even she
[24:22] Speaker 1: seems skeptical of the Board's position, and the other judges also,
[24:26] Speaker 1: I think, seemed skeptical of the Board's position.
[24:28] Speaker 3: Now, this has been the Board's.
[24:29] Speaker 1: Position basically since the nineteen forties. The Quarter of Appeals
[24:33] Speaker 1: judges seemed to be suggesting that the Board was interpreting
[24:35] Speaker 1: the Lontanan rule too broadly as applied to these facts.
[24:38] Speaker 1: It's not clear what's going to happen with the decision,
[24:41] Speaker 1: but I do think the judges were expressing skepticism of
[24:45] Speaker 1: the Board's desire to protect so robustly the ability of
[24:49] Speaker 1: workers to wear insignia in public facing jobs.
[24:52] Speaker 3: And will you just explain again what the board's rule
[24:55] Speaker 3: is is that the Tesla rules.
[24:56] Speaker 1: Well, it dates all the way back to this early
[24:59] Speaker 1: early case called public Aviation, which on the Board decided
[25:03] Speaker 1: and then the Supreme Court affirmed, which established a series
[25:06] Speaker 1: of presumptions about what workers can do and what they
[25:08] Speaker 1: can't do. And it was developed in further cases, including
[25:11] Speaker 1: one involved in a hospital. But more recently, the Board
[25:14] Speaker 1: has elaborated the rule in the Tesla case and others
[25:17] Speaker 1: where it has made very clear that there's a lot
[25:20] Speaker 1: of protection for workers' ability to wear union insignia. If
[25:23] Speaker 1: an employer is going to restrict it because of a
[25:26] Speaker 1: special exception because of the particular context of the work,
[25:30] Speaker 1: it has to show that it really needs to do that.
[25:33] Speaker 3: So the judges were asking about what level of deference
[25:37] Speaker 3: court should apply to the Board's decisions. This relates to
[25:42] Speaker 3: the Supreme Court case Lope or Brides. So explain how
[25:45] Speaker 3: the landscape is different right now?
[25:47] Speaker 1: Yeah, So historically, really, since the statute, the Nationalianbrre Relations
[25:52] Speaker 1: Act was first enacted, the courts of appeals have given
[25:55] Speaker 1: a lot of deference to the board's legal interpretations status
[26:00] Speaker 1: and also its application of the law to facts. Even
[26:04] Speaker 1: before the Supreme Court decided its famous Chevron case, which
[26:07] Speaker 1: required courts to defer to agencies reasonable interpretations of statutes,
[26:14] Speaker 1: the Board, even prior to Chevron, received a lot of
[26:17] Speaker 1: difference from the courts. Recently, the Supreme Court ruled in
[26:21] Speaker 1: a case called Low or Bright that that level of
[26:23] Speaker 1: deference to the agency's legal interpretations is not appropriate, and
[26:29] Speaker 1: rather courts should, in the first instance, determine what the
[26:33] Speaker 1: statute means when a statute is ambiguous, And that really
[26:37] Speaker 1: shifts the landscape because for so many decades courts have
[26:41] Speaker 1: been deferring to the board's understanding of how an organizing
[26:44] Speaker 1: campaign occurs and how to defend workers' rights to organize,
[26:48] Speaker 1: and to what extent employer rights have to give way
[26:51] Speaker 1: to the right to organize. And now the courts are saying, well,
[26:54] Speaker 1: we have to look at this in the first instance,
[26:56] Speaker 1: and that suggests that a lot of Board law might
[27:00] Speaker 1: be up for grabs or challenge, which is in part
[27:02] Speaker 1: I think why there are so many cases percolating through
[27:05] Speaker 1: the courts.
[27:05] Speaker 3: Now, have any of the other circuit courts described the
[27:09] Speaker 3: level of deference that the NLRB should be getting.
[27:12] Speaker 1: Now, some of those circuits have concluded that lowber Bright
[27:16] Speaker 1: does extend to the NLRB. Not all courts have ruled that,
[27:21] Speaker 1: but it seems likely that that's the direction where the
[27:24] Speaker 1: courts are moving. So essentially, after Low or Bright, when
[27:28] Speaker 1: we're dealing with a legal question, the court would not
[27:31] Speaker 1: be giving deference to the Board other than to accept
[27:33] Speaker 1: the Board's interpretation as persuasive, but it wouldn't be giving
[27:36] Speaker 1: any special difference to the board. Still though, when the
[27:39] Speaker 1: Board makes factual determinations, those are entitled to deference. And
[27:43] Speaker 1: part of the debate in the case yesterday was is
[27:45] Speaker 1: this well established law and the really debating how it
[27:47] Speaker 1: applies to these facts, in which case the Board would
[27:50] Speaker 1: be entitled to difference even after Lobe or Bright. Or
[27:53] Speaker 1: is this a question of interpreting the law, in which
[27:55] Speaker 1: case the Board isn't entitled the difference, and the court
[27:57] Speaker 1: seemed not clear about which way it was going with that.
[28:00] Speaker 3: Is it possible that the court doesn't address that deference
[28:03] Speaker 3: issue and just does a narrow ruling on the wearing
[28:07] Speaker 3: of the pins and the T shirts.
[28:09] Speaker 1: It's possible, you know. I think the court could say
[28:11] Speaker 1: that the Board just got the law wrong and it
[28:13] Speaker 1: has to reconsider, or that, even using the board's own tests,
[28:17] Speaker 1: it was applied incorrectly. There are many different ways the
[28:19] Speaker 1: court could rule here. Or the court could say, you know,
[28:22] Speaker 1: given the other messages that the Starbucks is allowing workers
[28:25] Speaker 1: to wear, and given that workers have a right to
[28:28] Speaker 1: express their support for unions, the Board is correct that
[28:32] Speaker 1: Starbucks doesn't have a right to prohibit these.
[28:34] Speaker 3: So telling me about the Starbucks strike and you know
[28:37] Speaker 3: the effort to unionize. Are there instances where companies have
[28:42] Speaker 3: been able in this kind of a situation to avoid unionization.
[28:47] Speaker 1: Well, lots of companies have been able to avoid unionization
[28:51] Speaker 1: by aggressively campaigning against unionization, including by violating the law,
[28:56] Speaker 1: by terminating workers who organized, by threatening workers who organized.
[29:00] Speaker 1: And although all of that is against the law, the
[29:02] Speaker 1: penalties are very minimal, and so frequently employers do violate
[29:06] Speaker 1: the law in order to squelch union organizing campaigns. And
[29:09] Speaker 1: I think we see this when people are asked whether
[29:11] Speaker 1: they support unions or whether they wish that they could
[29:13] Speaker 1: have a union. A majority of workers, over fifty percent
[29:16] Speaker 1: of workers say they wish they could have a union,
[29:18] Speaker 1: and yet unionization rates among private sector workers are as
[29:21] Speaker 1: low as six percent, And that gap is explained in
[29:24] Speaker 1: part because the law does not effectively protect the right
[29:28] Speaker 1: to organize, even though it promises to do so.
[29:30] Speaker 3: The NLRB under this new administration is it changing its
[29:35] Speaker 3: positions right now?
[29:37] Speaker 1: There is no functioning NRB. President Trump has fired contrary
[29:41] Speaker 1: to statute board member, which means that there's no longer
[29:45] Speaker 1: a quorum. His argument is he has the right to
[29:48] Speaker 1: fire board members, even though the statute says he can't
[29:53] Speaker 1: under a unitary executive area. It's the same argument they're
[29:56] Speaker 1: making in the context of the Federal Trade Commission and
[29:58] Speaker 1: other agencies. And so right now, the spoom Court has
[30:01] Speaker 1: not yet decided whether, in fact, Congress has the ability
[30:05] Speaker 1: to protect board members from removal or rather the president
[30:08] Speaker 1: has the ability to fire them for any reason. But
[30:11] Speaker 1: right now there's no quorum at the board, so there
[30:13] Speaker 1: is no board making decisions. Presumably at some point there
[30:16] Speaker 1: will be one again, and i'm the board will become
[30:19] Speaker 1: more pro employer in its orientation.
[30:22] Speaker 3: That does seem like the likely outcome. Thanks so much, Kate.
[30:27] Speaker 3: That's Professor Kate Andreas of Columbia Law School. And that's
[30:31] Speaker 3: it for this edition of The Bloomberg Law Show. Remember
[30:34] Speaker 3: you can always get the latest legal news on our
[30:36] Speaker 3: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
[30:40] Speaker 3: and at www dot Bloomberg dot com, slash podcast Slash Law,
[30:46] Speaker 3: And remember to tune into The Bloomberg Law Show every
[30:49] Speaker 3: weeknight at ten pm Wall Street Time. I'm June Grosso
[30:53] Speaker 3: and you're listening to Bloomberg

Shows are listed from Apple Podcasts' charts and directory, and Podcast Index where it is used. Every show and episode belongs to its publisher and plays from the publisher's own feed; this site hosts none of them.