Wobbly-supporting Barista Remained NLRA-protected Despite Profane Customer-facing Outburst: NLRB | Practical Law

Wobbly-supporting Barista Remained NLRA-protected Despite Profane Customer-facing Outburst: NLRB | Practical Law

In Starbucks Corp., on remand from the US Court of Appeals for the Second Circuit, the National Labor Relations Board (NLRB) affirmed that an off duty employee who openly supported the International Workers of the World (IWW or Wobblies) did not forfeit National Labor Relations Act (NLRA) protections when he launched a profanity-laced outburst inside a Starbucks store, in front of customers. The NLRB affirmed its earlier conclusion that the resulting discharge was unlawful, this time applying its Wright Line mixed motive test and holding that Starbucks violated the NLRA because it discharged the employee motivated in part by his protected prounion activities.

Wobbly-supporting Barista Remained NLRA-protected Despite Profane Customer-facing Outburst: NLRB

by Practical Law Labor & Employment
Published on 24 Jun 2014 • USA (National/Federal)
In Starbucks Corp., on remand from the US Court of Appeals for the Second Circuit, the National Labor Relations Board (NLRB) affirmed that an off duty employee who openly supported the International Workers of the World (IWW or Wobblies) did not forfeit National Labor Relations Act (NLRA) protections when he launched a profanity-laced outburst inside a Starbucks store, in front of customers. The NLRB affirmed its earlier conclusion that the resulting discharge was unlawful, this time applying its Wright Line mixed motive test and holding that Starbucks violated the NLRA because it discharged the employee motivated in part by his protected prounion activities.
In Starbucks Corp. the US Court of Appeals for the Second Circuit held that the NLRB should not have applied the test from Atlantic Steel, 245 N.L.R.B. 814 (1979) when it decided that an off-duty employee did not forfeit NLRA protection through a profanity-laced outburst in front of the employer's customers on the employer's premises. The Second Circuit remanded the case to the panel (Board) heading the NLRB's judicial functions to determine how it would evaluate employees' prospective loss of NLRA protection in these situations and, based on that standard, whether Starbucks lawfully discharged the employee for his outburst despite his prounion activity supporting the International Workers of the World (Wobblies). The court found that the Board's analysis disregarded the employer's legitimate concern of not tolerating obscenity-laden employee outbursts in customers' presences. (NLRB v. Starbucks Corp., 679 F.3d 70 (2d. Cir. 2012).)
On remand, a three-member panel of the Board:
  • Applied the mixed motive test under Wright Line, 251 N.L.R.B. 1083 (1980).
  • Held that Starbucks violated the NLRA because it discharged the employee motivated in part due to his protected prounion activities.
  • Held 2-1 that the employee should be awarded in part reinstatement and backpay and other customary remedies for discharges under NLRA Sections 8(a)(1) and (3), even assuming the employee's profane outburst caused him to forfeit the NLRA's protection.
(360 N.L.R.B. slip. op. 134, (June 16, 2014).)

Background

Agins, a barista at a New York City Starbucks became an open and active supporter of the Wobblies union in 2005. The following incidents occurred:
  • May incident. In May 2005, Agins had an argument with a store manager where, after being told to wait when he asked for her help during a busy time, he made frustrated comments, including "[it is] about damn time," "this is bullshit," and told the manager to "do everything [her] damn self." The manager told Agins to punch out and suspended him for several days. She then wrote a written warning:
    • summarizing the incident; and
    • threatening termination if his behavior was repeated.
    Agins apologized for his outburst when he returned to work.
  • November incident. In November 2005, Agins entered the store while off duty with several other off-duty employees to protest the district manager's ban on employees wearing union pins. An off-duty manager from another Starbucks location and a regular customer of this store confronted Agins, and the two engaged in a heated conversation with both men speaking loudly using hand gestures and obscenities. Agins told the manager "You can go fuck yourself, if you want to fuck me up, go ahead, I'm here." After the confrontation, Agins' supervisor admonished him while he listened to her calmly.
In December 2005, Starbucks terminated Agins, claiming that he disrupted business during the November incident in violation of his written warning. The memorandum documenting his discharge listed his strong support for the union as one of the reasons he was ineligible for rehire.
The Wobblies filed an unfair labor practice (ULP) charge alleging an unlawful discharge. An NLRB administrative law judge (ALJ) agreed, finding that:
  • Agins' protest in the store while off-duty was a protected concerted activity.
  • His dispute with the off-duty manager and regular customer:
    • was not as extreme as employer witnesses testified but likely could have caused a disruption in business because employees and customers may have overheard it; and
    • was not so egregious that he lost protection of the NLRA under Atlantic Steel.
  • His discharge was unlawful because he was terminated for engaging in protected concerted activity.
  • His discharge was also unlawful under Wright Line because his support the union was a motivating factor.
(355 N.L.R.B. 636 (2010) and 354 N.L.R.B. 876 (2009).)
The Board:
  • Adopted the ALJ's finding that Starbucks violated Sections 8(a)(1) and (3) for discharging Agins under Atlantic Steel.
  • Did not reach the ALJ's Wright Line analysis and findings.
The NLRB petitioned the Second Circuit for enforcement of the Board's decision and Starbucks counter-petitioned for review.
The Second Circuit:
  • Found in part that the NLRB erred when it applied the Atlantic Steel test to Agins' outburst because:
    • the Atlantic Steel test only applies when an employer's primary concern is whether an employee's outburst would impair employer discipline, for example, if it occurred on the factory floor or in a back office;
    • the first Atlantic Steel factor, the place of the outburst, distinguishes employee outbursts in front of other employees from those away from other employees or in the course of grievance proceedings or contract negotiations. The test has no application to an outburst occurring in a public venue where customers are present; and
    • the Board's analysis disregarded the employer's legitimate concern of not tolerating obscenity-laden employee outbursts in customers' presences.
  • Remanded the case to the Board to decide what standard should apply when an employee utters obscenities in front of customers while discussing employment issues.
(See Legal Update, Starbucks Can Prohibit Multiple Pro-union Buttons: Second Circuit.)

Outcome

On remand, a three-member Board panel (Members Hirozawa, Miscimarra and Schiffer with Member Johnson recused):
  • Accepted the Second Circuit's finding that the Atlantic Steel test was inapplicable.
  • Held that, under Wright Line, Starbucks' discharge of Agins violated Sections 8(a)(1) and (3) of the NLRA because Starbucks discharged him motivated in part by his protected prounion activities.
Applying the test from Wright Line, a majority (Members Hirozawa and Schiffer) found that:
  • Agins' union activities were a motivating factor in his discharge, noting that:
    • Starbucks knew about Agins' union activity and support;
    • Starbucks engaged in several ULPs showing anti-union animus; and
    • Agins' written discharge document expressly stated that he was to be ineligible for rehire because of his strong support for the union.
  • Starbucks failed to show that it would have discharged Agins absent his protected union activities, noting that:
    • Starbucks' alleged reason for terminating Agins, for disrupting business during the November incident in violation of his written warning, was inconsistent with its more lenient treatment of other employees who engaged in similar or worse misconduct;
    • the ALJ credited Agins' testimony that he never received the written warning from the May incident;
    • the May incident occurred more than six months before his discharge;
    • Starbucks failed to present testimony on the reason for his termination or identify who made the termination decision;
    • the ALJ largely discredited Starbucks' version of Agins' conduct and its reason for his discharge, allowing the Board to draw an inference that it wanted to conceal the real reason because it was unlawful;
    • there was no evidence that Starbucks disciplined the off-duty manager who provoked Agins and also used profanity during the November incident; and
    • Starbucks' reference to his union activities in his discharge document cast doubt on Starbucks' claim that he would have been discharged absent his protected union activities.
Member Miscimmara concurred:
  • Agreeing with the Board majority that Agins' discharge violated Sections 8(a)(1) and (3) of the NLRA.
  • Disagreeing with the Board majority for citing Starbucks' failure to introduce evidence that it disciplined the off-duty manager in its analysis, noting that:
    • they held different positions;
    • worked in different stores; and
    • therefore, they are not similarly situated.
  • Resolving the questions that the Second Circuit asked on remand to the Board and that the majority declined to reach based on its conclusion that Agins' discharge was unlawful, finding that:
    • Agins' conduct during the November incident lost protection of the NLRA because under Restaurant Horikawa, 260 N.L.R.B. 197 (1982), his off-duty protest inside the store and his heated conversation with the customer and off-duty manager disrupted and interfered with Starbucks' business operations; and
    • Starbucks' decision to terminate Agins would have been lawful had it been based solely on his conduct during the November incident.
  • Finding that Agins' discharge would have been lawful if Starbucks had been motivated to discharge Agins solely because of his unprotected conduct.

Practical Implications

This decision and the NLRB's recent holding in Plaza Auto Center (see, Legal Update, Employee Who Pushed Chair Aside and Hurled Obscenities at Manager Punctuated by Threat Did Not Lose NLRA Protections: NLRB), highlight a trend that the current Board majority will provide employees greater leeway to use profanity in the workplace than earlier Board precedent if the profanity can be connected to concerted or union activity. The Board majority in both cases declined to define how much profanity an employee must use to forfeit the NLRA's protection.
The employer in this case needed to overcome evidence and an ALJ's conclusions that its decision to discharge was motivated in part by knowledge that the employee was a strong union supporter. Employers not facing this hurdle should consider looking at Restaurant Horikawa for guidance on how to address off-duty employee protests on the employer's premises that affect the employer's dealings with customers and how to curate the evidence showing legitimate nondiscriminatory bases for terminating employees who disrupt business with customer, including through use of profanity.