Another Case of Reconsideration for the NLRB

Recently we wrote about the NLRB’s decision protecting profanity directed toward a boss during a heated argument in the bosses office.  That decision came after a federal appeals court told the NLRB to reconsider its earlier decision providing protection to the boss-cussing worker.  The NLRB did reconsider but came to the same conclusion – cussing out the boss can be protected concerted activity under the National Labor Relations Act (“NLRA”).  And now, in another case decided on June 16, 2014, the NLRB again ruled in favor of a discharged employee who cussed out his boss in front of customers.

As in the previous case, the NLRB’s original ruling protecting cussing directed at the boss was reviewed by another federal court of appeals that ordered the NLRB to reconsider its ruling that was seemingly at odds with NLRB precedent that holds that cussing the boss under certain egregious conditions was not to be protected. See our Blog from May 23, 2012: Want Some Obscenity To Go With Your Coffee? – The NLRB Has To Think About It where we set out the facts in detail.

Disruption at Starbucks Results in Discharge

Here is what happened. Back in 2005 a group of Starbucks’ employees were trying to organize their local store in Manhattan.  An assistant store manager was asked by one of the known pro-union employees for some help during a particularly busy time. The manager said he “would have to wait.”  When the manager eventually came to help, the employee said it was “about damn time.” He then noisily shoved a blender in the sink. The employee then said that “this is bullsh*t,” and told the manager to “do everything your damn self.” The manager told the employee to punch out.  He was then was suspended for several days.  Then a few weeks later another incident happened.  The employee confronted an off-duty manager who had come into the Starbucks as a regular customer and asked about the union button the employee was wearing. Words led to more words that escalated into a heated confrontation, during which both men spoke loudly and used hand gestures and obscenities. At some point, the employee told the manager “You can go f**k yourself, if you want to f**k me up, go ahead, I’m here.”  The confrontation ended after several minutes.  Then, a few weeks later, the employee was fired for “disrupting business”  during that confrontation.  A charge was filed and a trial was held over the alleged discharge for engaging in protected concerted activity.  The NLRB ruled that the profanity occurring in the store in front of customers was legally protected.  Starbucks appealed and convinced the federal appeals court that the NLRB had failed to follow its own precedents that say that profanity in front of customers loses the legal protections of the NLRA.  The court sent the case back to the NLRB to reconsider the basis for its decision.

Well, the NLRB reconsidered its decision, but still ordered the employee to be reinstated with back pay.  This time the NLRB found a different reason to rule in favor of the profanity-spouting employee – he was fired in part for being a union supporter.  Indeed, there is some logic to this holding.  You see, when Starbucks’ internal document stated that the employee was “not eligible for rehire because [the employee] was insubordinate and threatened the store manager. [The employee] strongly support [sic] the IWW union.

Mixed Motive 

It has long been the rule with the NLRB (and other tribunals) that where there is evidence of mixed motives for a discharge – a legitimate one and one that may be illegal – then the employer would be liable if it cannot be shown that the employee would have been fired even without the apparent illegal motive.  In this case, Starbucks, according to the NLRB, couldn’t show that it would have fired the cussing employee except for the fact that he was a union supporter.  The evidence showed that in the past other employees who had been disruptive or had used profanity were not fired. That coupled with the statement in the internal document that the employee strongly supported the union was the smoking gun that killed Starbucks’ case.

Lessons for Employers

The fact that on remand the NLRB backed away from its original holding that the employee’s profanity and disruptive behavior in front of customers was protected indicates that the precedent still is controlling.  In other words, employee disruptions in front of customers can warrant discharge.  But the key lesson here is employers should not raise the possibility of mixed motives for the adverse action by mentioning union or other protected activities in their documentation or statements leading up to or following taking action against the cussing employee.

Reference:  Starbucks Corporation d/b/a Starbucks Coffee Company and Local 660, Industrial Workers of the World. (NLRB June 16, 2014)