NLRB: Starbucks can't fire cursing, pro-union worker

Starbucks cannot fire a union activist employee who cursed at a manager in front of customers, the National Labor Relations Board has ruled for the second time.

Joseph Agins was active in trying to unionize four Manhattan Starbucks coffee shops between 2004 and 2007. According to the NLRB ruling, he twice cursed during arguments with managers.

The first time, on May 14, 2005, Agins was angry that an assistant manager did not come to help him right away when the shop got busy. When the manager did come to help, Agins said it was "about damn time," noisily shoved a blender in the sink, said "this is (BS)" and told the manager to "do everything your damn self." Agins was suspended for several days and Starbucks wrote a warning, which Agins said he never received.

Then, on Nov. 21, Agins and several other employees came to the shop while off duty to protest a prohibition on wearing union pins while at work. While there, an off-duty assistant manager from another Starbucks asked Agins about the protest in a way that an NLRB judge deemed was "meant to be confrontational."

Agins believed the assistant manager had previously made derogatory remarks to Agins' father about the father's support for the union. The confrontation escalated, and Agins told the assistant manager: "You can go ... yourself, if you want to ... me up, go ahead, I'm here."

The assistant manager on duty (the same one Agins had cursed at before) admonished Agins, but did not call the police or ask him to leave. On Dec. 12, Starbucks fired Agins, saying he "was insubordinate and threatened the store manager" while also mentioning his union support.

The NLRB initially ruled that Agins was engaging in protected activity on Nov. 21, 2005, and his conduct in the confrontation was not bad enough to override those protections.

But the 2nd U.S. Circuit Court of Appeals ruled the board "improperly disregarded the entirely legitimate concern of an employer not to tolerate employee outbursts containing obscenities in the presence of customers," rather than on a factory floor or in a backroom office. It sent the case back to the board.

In the new ruling, a three-member panel representing the full NLBR relied on a different precent, which says a company cannot fire an employee if the firing was motivated in part by union activity and the company does not prove it would have fired the employee even without the union activity.

The panel said Starbucks treated other employees more leniently for "similar or worse misconduct" in the presence of customers, and noted there was no evidence that the off-duty assistant manager who provoked Agins received any discipline for the incident. It added that Starbucks could not even say who decided to fire Agins and "presented an exaggerated version of Agins' actions on Nov. 21," and noted that the NLRB judge in the case credited Agins' testimony that he never received a warning regarding the May 14 incident (meaning it couldn't be considered in evaluating the firing).

The board ordered Starbucks to offer Agins his old job or a substantially equivalent position, compensate him for any loss of earnings and other benefits, and remove from its files any references to the unlawful firing.

Responding to the ruling Tuesday Starbucks spokesman Zack Hutson said: "We've received the board's decision and we're evaluating it to determine next steps. We aim to create a welcoming environment in our stores, and we do not tolerate partners cursing in the presence of customers, whether or not they are affiliated with a union"

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