Starbucks has a reputation for making great coffee. It values that reputation and when employees use obscenities in the store in front of customers something has to be done.
That’s what happened at a Starbucks store in Manhattan where a vocal union organizer got even more vocal in the store and used obscenities in front of customers while protesting Starbucks’ “One Button Rule.” The employee said to an off duty manager in front of customers, “You can go f*** yourself, if you want to f*** me up, go ahead, I’m here.” The organizer was fired for her outburst and filed a charge with the NLRB. The Board ruled that Starbucks acted unlawfully in firing the union organizer for cussing. The NLRB considered that the cussing was “protected concerted activity” and ordered the employee reinstated with back pay. It also ruled that Starbucks’ rule limiting only one pro union button to be worn at one time was also unlawful because it interfered with employee rights.
Starbucks appealed – - and won. The Second Circuit Court of Appeals said the NLRB was wrong in deciding that the obscenity laced comments – in front of customers- was protected activity. The Court criticized the NLRB for deciding the case as if it were a typical workplace confrontation where no customers were present. In those situations the NLRB considers four factors in determining if the outburst is protected activity:
(1) the place of the discussion;
(2) the subject matter of the discussion;
(3) the nature of the employee’s outburst; and
(4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.
The Court tells the NLRB to think about it
But in this case the Court held that the four factors in the typical workplace outburst situation were not applicable here. “We think the analysis of the ALJ and the Board improperly disregarded the entirely legitimate concern of an employer not to tolerate employee outbursts containing obscenities in the presence of customers.” But rather than making it a total win for Starbucks, the Court sent the case back to the NLRB to re-consider its analysis of the protections afforded employees using profanities in work related matters when customers are present. We will all wait and see what the NLRB does. It will be interesting.
Reference: NLRB v. Starbucks Corp., (2d Cir., Docket Nos. 10–3511–ag, 10–3783–ag, May 10, 2012)