The case echoes a recent decision which shocked HR managers at the end of May. In that case, the NLRB had decided that a car salesman who called his boss a “f---ing crook”, among other things, should not have been fired, because the outburst was in private and related to the terms and conditions of his employment.
However, the Starbucks case marks a new precedent because now, the NLRB is endorsing public outbursts, as the plaintiff had sworn in front of customers.
The first time it happened, it was May 2005, and plaintiff Joseph Agins was angry that a supervisor did not assist immediately at a busy period. Eventually, the assistant manager helped, and Agins told him it was “about damn time”, and that the situation was “bulls--t”. He was suspended for several days, but not fired. But in November, Agins was amongst a group of employees who came to the shop off-duty to protest the company policy of not wearing union pins while working. The situation became a high-strung confrontation, and Agins told the same assistant manager to “go f--k yourself…f--k me up, go ahead”.
A few weeks later, Agins was fired for insubordination and threatening the manager – and it also mentioned the union support in his termination. Agins turned to the NLRB, which ruled that he was engaging in protected activity in November and should not have been fired. A 2nd
Circuit Court of Appeals disagreed and turned the case back to the board, and finally this week the it was decided again.
The new ruling again found in Agins’ favor, saying Starbucks had treated other employees differently for similar misconduct, and finding that the firing was motivated in part by his union activity. Starbucks must reinstate Agins and offer him backpay.
Starbucks was wrong to fire a worker who swore in front of customers twice, the National Labor Relations Board has ruled.