Here’s Your [Expletive] Latte!

Randi Klein Hyatt
Randi Klein Hyatt

One would think that cursing in front of customers would be sufficient grounds for termination – even at a progressive enterprise like Starbucks. However, if those outbursts come from a union supporter while performing union activity, you should think again.

The National Labor Relations Board recently issued its decision in Starbucks Corporation d/b/a Starbucks Coffee Company and Local 660, Industrial Workers of the World, case number 02-CA-037548. In that case, Starbucks had previously suspended an employee for cursing in front of customers. Starbucks advised the employee – an open and ardent supporter of the union – that further outbursts would result in termination.

Later that year, the employee entered a Starbucks with other union supporters in order to protest a rule by Starbucks that prohibited employees from wearing union pins. An off-duty manager confronted the employee, and both men uttered obscenities in front of customers. Several weeks later, Starbucks discharged the employee and noted in the discharge papers that “[p]artner strongly support [sic] the IWW union.” Not surprisingly, the fact that the employee was in the store for union activities, as well as the reference to his support of the union in the termination papers, caused the union to file a charge.

The administrative law judge sustained the charge, but the United States Court of Appeals for the Second Circuit reversed and remanded. On remand, the Board affirmed the ALJ on a different basis, ruling that the employee’s discharge was motivated by his participation in protected union activities. The Board heavily relied on the notations in the termination papers indicating that the employee supported the union. The Board also noted the facts that the off-duty manager, who originally confronted the employee, was not disciplined and that other employees who used profanity were not disciplined as severely (albeit those were first time offenders).

Given the make-up of the NLRB, employers have to ensure that they take a strictly union-neutral approach to discipline and that documentation of such discipline is not subject to interpretation. If it is, they should bear in mind that it is the NLRB which will ultimately do the interpreting.

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