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Do You Take Profanity With Your Coffee? The NLRB Says You Should




by:
Mark Falkowski
Husch Blackwell LLP - St. Louis Office

 
June 26, 2014

Previously published on June 18, 2014

Earlier this week the National Labor Relations Board issued a decision finding Starbucks violated the National Labor Relations Act when it terminated an employee who uttered profanities at a Starbucks manager in the presence of customers. This was the employee’s second profanity (and presumably espresso) fueled tirade directed toward a Starbucks manager at the Manhattan Starbucks location. Despite the employee’s direction to the manager of what he could do to himself, an administrative law judge found in the employee’s favor and the Board then filed an application for enforcement. Seeing through the froth of the employee’s caramel macchiato, venti, skim, extra shot, extra-hot, extra-whip, extra-froth, sugar-free argument, the United States Court of Appeals for the Second Circuit concluded the employee lost protection of the Act by using of obscenities in the presence of an employer’s customers and remanded the matter to the Board.

Predictably, on remand the Board concluded that even assuming the employee lost protection of the Act by uttering profanities at a manager in the presence of customers, Starbucks still violated Section 8(a)(3) and (1) of the Act when it terminated the employee. The Board applied the Wright Line analysis and found Starbuck’s decision to discharge the employee was in part motivated by the employee’s pro-union activities, which were protected. The facts of the incident for which the employee was terminated include: the employee entering the Starbucks location at which he worked during his non-scheduled work hours wearing a union pin; engaging in a confrontation with an off-duty Starbucks assistant manager after being asked about the pin; and using multiple obscenities directed toward the off-duty assistant manager in the presence of customers. As part of Starbuck’s termination process, the store manager noted the employee was ineligible for rehire in part because of his union support. The Board found this statement violated the Act. The Board ordered Starbucks to cease and desist from unfair labor practices, take certain affirmative action designed to effectuate the policies of the Act, and offer the employee full reinstatement, and lost earnings and benefits.

The caffeinated coffee ground lining for employers is that a Member of the Board concurring, confirmed the employee’s conduct was unprotected, and Starbuck’s decision to terminate his employment would have been lawful had Starbucks acted based on that incident alone. This Board Member went on to state that the “Act does not confer protection upon employees, whether or not they are on duty, to occupy an employer’s premises and disrupt or interfere with normal operations.”

This case highlights the Board’s willingness to ignore directions from the Appeals Courts and to find employers violated the Act, despite clear terminable misconduct on the part of employees. This case serves as a reminder for employers of the importance of maintaining and training employees on proper employment and termination practices.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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