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It is 6am and I am on my way to the San Francisco Bay Area for a deposition. I stop at my favorite Starbucks for a boost. The barista’s are always helpful and courteous. However, do I really need to be faced with the modern day equivalent of the 1980s TGI Friday’s server? According to one Court I may have to endure that and be the unwitting target of union propaganda at the same time. The good news at least is that a recent federal appeals court held that there will not be more than one pro-union pin on the uniform. So at least my favorite coffee house won’t begin to resemble anyone of a dozen state office buildings, full of workers that look like they are headed to a pin trading convention at Disneyland, rather than another day’s work on behalf of the State’s citizens.

The Starbucks’ Button Case

In 2004, the Industrial Workers of the World (IWW) began a very public organizational campaign to unionize the hourly employees at four Starbucks locations in New York. Starbucks mounted an anti-union campaign in an effort to restrict the growth of pro-union sentiment.

The National Labor Relations Board (NLRB) found that Starbucks engaged in a number of restrictive and illegal policies, including: prohibiting employees from discussing the union or the terms and conditions of their employment; prohibiting the posting of union material on bulletin boards in employee areas; and, discriminating against pro-union employees regarding work opportunities.

The unionizing effort created a significant challenge for the company. During the unionization effort, Starbucks prohibited employees from wearing pro-union buttons with their uniforms. The NLRB predictably took issue with the practice. Starbucks reached an informal settlement agreement with the NLRB and began prohibiting employees from wearing more than one pro-union button at a time.

But that was certainly not the end of this story. After the settlement, the Starbucks managers had employees wearing pro-union buttons remove all but one of the buttons. Thereafter, another dispute arose.

The NLRB found the Starbucks dress code limiting employees to wearing only one pro-union button was an unfair labor practice. Starbucks appealed and the NLRB ruling on the one-button policy was reviewed by the U.S. Court of Appeals for the 2nd Circuit. The 2nd Circuit concluded that “the [NLRB] has gone too far in invalidating Starbuck’s one button limitation.”

The 2nd Circuit reasoned that Starbucks could overcome this presumption of illegality by the NLRB by showing “special circumstances,” which could include “maintaining a certain employee image (especially with respect to uniformed employees).”

The court then took a look at the Starbucks dress code and company practices related to employees wearing different types of buttons or pins. The Starbucks dress code was well stated, complete and comprehensive. It includes rules about appropriate types and colors of shoes, pants, socks, shirts, undershirts, and jewelry. The Starbucks’ employee handbook stated that the purpose of the dress code is to have employees “present a clean, neat, and professional appearance appropriate of a retailer of specialty gourmet products.”

While that may have ended the Court’s analysis in favor or Starbucks, the Court had to still address the fact that Starbucks encourages employees to wear multiple pins and buttons issued by the Company that advertised company products and promotions. In an expected response to Starbucks’ position the NLRB stated that allowing employees to wear multiple pro-union buttons did not seriously harm Starbuck’s interest in employee image. This position was supported by the argument that “the Company . . . encouraged employees to wear multiple buttons as part of that image.”

Starbucks, on the other hand, argued that allowing employees to wear an unlimited number of pro-union buttons would convert them into “personal message boards” and would “seriously erode” the information conveyed by Starbucks-issued pins promoting company products. Starbucks pointed to an employee who attempted to litter her pants, shirts, hat, and apron with at least eight union pins during her work shift.

In making its decision, the court found that Starbucks is “entitled to oblige its employees to wear buttons promoting its products, and the information contained on those buttons is just as much a part of Starbucks’s public image as any other aspect of its dress code.” The court went on to find that Starbucks is entitled to avoid numerous union buttons distracting customers from its public message. The court ultimately found that Starbucks “adequately maintains the opportunity to display pro-union sentiment by permitting one, but only one, union button on workplace clothing.”

So as we all cheer the 2nd Circuit’s decision we have to think about how this translates into our workplaces.

Companies should be careful to consider perceived discouragement of unionization when implementing new workplace policies. In addition, employers should consider the business justification for workplace rules, especially in the areas of uniforms, dress codes, workplace bulletin boards, and workplace meeting rooms.

What the 2nd circuit does for us however, is give us hope that if we can show that limited and selective restrictions, such as the uniform restrictions at issue in Starbucks, are a reasonable and necessary way to protect your public image, you can limit the display of pro-union insignia.

Now we can thank the almighty Starbucks for more than just our morning caffeine jolt, or the return of the Pumpkin Spice latte. We can show our appreciation for a workplace uncluttered with pro union buttons and other gimmicks.

Gov. Brown signed AB 1875 on September 17, 2012. The new law essentially brings California civil procedure in line with federal civil procedure and, absent an exception or some other relief by the court, limits depositions to seven (7) hours in length.
Effective January 1, 2013, the Code of Civil Procedure will contain a new section 2025.290 that provides that except in those circumstances outlined in the statute, or if a court orders otherwise, a witness’ deposition by all counsel, other than the witness’ counsel of record, shall be limited to seven (7) hours of total testimony. The statute provides that the court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

Some of the exceptions to the 7 hour limitations are:

1. If the parties have stipulated that this section will not apply to a specific deposition or to the entire proceeding.
2. Designated expert depositions.
3. In cases designated by the court as complex cases, unless a licensed physician attests in a declaration served on the parties that the deponent suffers from an illness or condition that raises substantial medical doubt of survival of the deponent beyond six months, in which case the deposition examination of the witness by all counsel, other than the witness’ counsel of record, shall be limited to two days of no more than seven hours of total testimony each day, or 14 hours of total testimony.
4. Employment cases brought by employees for acts or omissions by the employer arising out of or relating to the employment relationship.
5. Person Most Qualified (PMQ) depositions.
6. If a new party who appears in the case after a deposition has concluded, notices a deposition of the same witness.

The Legislature made clear that none of the listed exclusions should be construed to create any presumption or any substantive change to existing law relating to the appropriate time limit for depositions. Also, all parties continue to have the same rights to move for a protective order and the court retains discretion to make any order that justice requires to limit a deposition in order to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, oppression, undue burden, or expense.

How May The New Law Affect Arbitration?

The new statute will be part of the Code of Civil Procedure and does not specifically address depositions taken as part of an arbitration. Whether the 7 hour restriction will apply to such depositions will depend on the language of the parties’ arbitration agreement. Since the new statute provides an exception to the time restriction if the parties have stipulated to more time, it is recommended that this issue be specifically addressed in the language of the arbitration agreement. If it is not and the agreement merely incorporates the Code of Civil Procedure, it is likely that the 7 hour limitation will apply to depositions taken during the arbitration.