Wednesday, June 25, 2014

Make Mine a Venti Hazelnut Latte with an F-Bomb

In the words of the immortal Yogi Berra, “it’s like déjà vu all over again.”  For the second time in a month, the Nasty Language National Labor Relations Board has decided that an employee should not have been fired for telling a manager to “go f**k himself.”  And this time the confrontation occurred in front of customers.

This latest case arose out of incidents at a Starbucks coffee shop in lower Manhattan.  Joseph Agins was an employee who openly supported various efforts by Local 660, Industrial Workers of the World to unionize four Starbucks locations, including the one at which he worked.  One day during an especially busy period, he asked his assistant manager for assistance but was told to wait for a moment while she finished helping a customer.  He snapped back, “this is bulls**t,” and told the manager that she should just “do everything your damn self.”  Agins was suspended for several days.

Six months later, while off-duty, Agins and a group of fellow union supporters appeared at the store to protest management’s ban on wearing union pins while working.  An off-duty manager approached the group and asked Agins why he wanted to wear a union button.  A heated exchange ensued, complete with hand gestures, during which Agins yelled at the manager, “You can go f**k yourself.”  The scene took place in front of the store’s customers.  Agins was subsequently fired and challenged the termination as unlawful.

The NLRB sided with Agins, finding that the discharge occurred while he was engaged in protected, concerted activity and that his conduct was not so egregious as to lose its legal protections.

Starbucks appealed, however, and the federal appeals court had a very different view of things.  It found that Agins’ conduct lost all legal protection and that the NLRB “improperly disregarded the entirely legitimate concern of an employer not to tolerate employee outbursts containing obscenities in the presence of customers.”  Thus, it remanded the case back to the NLRB with specific instructions to decide what standard should apply when an employee, “while discussing employment issues, utters obscenities in the presence of customers.”

When the case got back to the NLRB, however, things took a different turn.  Rather than following the direction of the court of appeals, the Board blew off the court’s explicit instructions and said that it would simply “assume that Agins’ conduct lost the protection of the Act.”  Unfazed, however, the Board then went on to again conclude that the termination was nonetheless unlawful, this time reasoning that the real motivation behind the discharge was Agins’ activities in support of the union.  That was not a reason that was even mentioned by the Board in its first decision on the case.

One of the Board members wrote a separate opinion in which he expressed concern that the Board had simply ignored the appellate court’s direction to the NLRB to come up with a standard for cases in which employees use obscenities while in the presence of customers.  He noted that the law “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.”

So, what are the takeaways from this case?  Three quickly come to mind:

1.  The NLRB is clearly willing to ignore explicit directions even from a federal appellate court in order to find that an employer acted unlawfully, despite the Board’s own acknowledgement that the offending employee engaged in misconduct that lost all legal protection.

2.  As we noted in a related post just days ago, the Board will invariably give employees who are engaged in activities for the mutual aid and protection of their fellow employees – in this case, Agins’ activities on behalf of the union – a certain amount of leeway to engage in conduct that might be considered inappropriate in other circumstances.  Thus, before taking any action against an offending employee, businesses should closely examine all relevant facts to determine whether taking adverse action would likely trigger an investigation and review by the Board.  Remember, even if the employer ultimately prevails, the road to get there can be long and expensive.

3.  It is absolutely critical that all employers arrange for supervisors and managers to be trained on the basic labor and employment laws, including how they should handle the range of workplace scenarios that they are likely to encounter in the context of their particular circumstances.

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