NLRB Concocts New F’ing Profanity Excuse

By John Alan Doran

In 2005, a Starbucks barista walked into his store with several co-workers while off duty. He was there to protest Starbucks’ policy concerning baristas wearing pro-union pins. A row ensued between the barista and an off-duty manager of a different Starbucks store who just happened to be enjoying a triple venti mocha loco latte triple espresso with two packs of sweet and low and a dash of cream at the time. The two exchanged heated words, including F-bombs, and the barista threatened the visiting manager before the matter was diffused.  Two weeks later, Starbucks fired the barista for using obscenities in front of customers.  Most unfortunately, the termination papers noted that the barista was not eligible for rehire because of his conduct, but added that the barista strongly supported the union.

The NRLB originally ruled that the barista was engaged in protected activity regardless of his multiple F-bombs and threats, and therefore the firing was unlawful.  A federal appeals court reversed the NLRB’s ruling because the NLRB’s standard failed to give any import to the barista’s boorish conduct.  When the case returned to the NLRB for reconsideration, the Board minted a brand new theory to find that the firing was unlawful.  Applying its long-time Wright Line rule, the Board found that the barista’s union support must have played some role in his firing, and the employer was supposedly unable to prove that it would have fired him even if he wasn’t a union supporter. Starbucks Corp., 360 NLRB No. 134 (June 16, 2014)

Tips for the day:  The next time you are inclined to note a fired employee’s pro-union leanings in a termination document, pause, treat yourself to a grande frappamochachino caffe misto with a shot of green tea and a dash of pumpkin spice, and forget about writing that termination document.  Also, if I’m ever behind you in line at a Starbucks, please just order a large black coffee and move along.  Thank you.