Publications: NLRB takes on barista free speech case

The case arose from an intense attempt during 2004 through 2007 by the Industrial Workers of the World (IWW) union to organize baristas in several Manhattan Starbucks shops. Starbucks management had little interest in having its workforce unionized and fought back aggressively. According to the IWW and the NLRB, Starbucks efforts, which included barring the baristas from wearing any pro-union buttons or pins, crossed the line and violated the National Labor Relations Act (NLRA).

Starbucks and the board ultimately settled this initial dispute in March 2006. As part of the settlement, Starbucks forsook the total ban on union buttons and implemented a policy that allowed baristas to display on their Starbucks uniforms “reasonably sized and placed buttons or pins that identify a particular labor organization or a partner’s support for that organization,” with certain limited safety exceptions.

Starbucks managers at various Manhattan outlets interpreted this policy to limit employees to wearing only one union pin at any one time. Managers required baristas to remove all but one IWW button or pin from their uniforms before commencing work. Management’s rationale for this interpretation of the policy was that multiple union pins detracted from the Starbucks marketing message conveyed by the multiple Starbucks pins the baristas are required or encouraged to wear on duty.

The NLRB thought differently and charged Starbucks with an unfair labor practice. The board, unsurprisingly, ultimately upheld an NLRB administrative law judge’s finding that Starbucks broke the law because it supposedly had no legitimate business interest in restricting employee displays of unlimited IWW buttons.

Fortunately for employers, NLRB decisions are subject to federal appellate court review by judges who typically have no agenda to advance and some knowledge of how business actually works. In this case, the 2nd Circuit refused to enforce the board’s ruling, writing that, “the board has gone too far in invalidating Starbucks onebutton limitation.”

According to the court, Starbucks had the right to cultivate its public image by requiring baristas to wear buttons pertaining to the Starbucks brand and products. Related to this right, the court noted, is Starbucks’ entitlement to avoid distraction from its message. Noting that one New York barista attempted to wear no fewer than eight union buttons on her shirt, hat, pants and apron, the court commented, “Wearing such a large number of union buttons would risk serious dilution of the information contained on Starbucks buttons.” In denying enforcement, the court concluded that allowing employees to wear just one IWW button “adequately maintains the opportunity to display prounion sentiment … ”

Another facet of this free speech case involved Starbucks November 2005 termination of Manhattan barista Joseph Agins. Agins had been having a running feud with Starbucks store manager Ifran Yablon, mostly centered on Agins’ strong support of the IWW. Agins particularly was annoyed with Yablon’s derogatory remarks about Agins’ father, who also was an IWW backer.

As fate would have it, Yablon, while off duty, was in a Starbucks store where Agins and other offduty baristas had gathered to show support for a working barista who had been required to remove IWW pins while on duty. Agins, in full view of Starbucks staff and customers, admittedly told Yablon, “You can go f**k yourself, if you want to f**k me up, go ahead, I’m here.” Starbucks employees separated
the men and Agins left the store.

Starbucks subsequently fired Agins, noting in his discharge papers that he had been “insubordinate and threatened a store manager.” The report also flagged Agins’ strong support for the “IWW union.”

The NLRB found Agins’ firing unlawful. Under board law, as set forth in its Atlantic Steel Co., 245 NLRB 814 (1978) decision, employee behavior converts otherwise protected behavior into unprotected misconduct depending upon 1) the place of the employee’s outburst; 2) the outburst’s subject matter; 3) the nature of the outburst; and 4) whether the employer’s commission of an unfair labor practice provoked the outburst. The board found that while the public place of Agins’ outburst against Yablon weighed against protecting Agins, the other factors weighed in favor of protection because Agins’ outburst concerned unionization, was brief and was somewhat provoked by Yablon.

The 2nd Circuit, in an unexpected and significant departure, ruled that Atlantic Steel Co. did not even apply to Agins’ discharge. In the court’s view, Atlantic Steel Co. applies to employee outbursts and misbehavior that occurs on the shop floor or in the back office, not in front of paying customers. Stated the court: “We think the analysis of the ALJ [administrative law judge] and the board improperly disregarded the entirely legitimate concern of the employer not to tolerate employee outbursts containing obscenities in the presence of customers.” Atlantic Steel Co., the court determined, had “nothing to do with public venues where customers are present.”

In refusing to sustain the board’s decision backing Agins, the 2nd Circuit remanded Agins’ charge back to the NLRB to determine what standard it will apply to employee statements or conduct occurring in the presence of customers. Significantly, the court retained jurisdiction over any subsequent petition for review of the board’s decision on remand.

We’ll be watching.

Reprinted with permission from the Chicago Daily Law Bulletin.