NLRB Loses at Court of Appeals, Switches Reasoning for Reinstatement on Remand

Joseph Agins was active in trying to unionize four Starbucks coffee shops. According to the NLRB ruling, he was terminated for having twice cursed during arguments with managers. In the first incident, Agins was angry that an assistant manager did not come to help him right away when the shop got busy. When the manager did arrive to help, Agins said loudly it was “about damn time,” dramatically shoved a blender in the sink, cursed, and told the manager to “do everything your damn self.” Agins was suspended for several days.

Then, six months later, Agins and several employees entered 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 that the assistant manager had previously made derogatory remarks about Agins’ family’s support for unions. The confrontation escalated with a profanity-laced outburst from Agins. The assistant manager on duty – the same one Agins cursed at before – admonished Agins but did not call the police or ask him to leave the premises. A month later 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 during the first incident and his behavior during the confrontation was not bad enough to lose protection of the National Labor Relations Act. On appeal, the Second Circuit Court of Appeals overruled the NLRB and remanded the case back to the Board that “improperly disregarded the entirely legitimate concern of an employer not to tolerate employee outbursts containing obscenities in the presence of customers.”

Having lost its first argument, upon remand the NLRB relied on different legal precedent and said that 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. In the end, the Board ordered Starbucks to offer Agins his old job back and compensate him for any loss of earnings and other benefits, and remove from its files any references to the unlawful firing.