National Labor Relations Board v. Starbucks Corp.
2012 U.S. App. LEXIS 9537
| 2d Cir. | 2012Background
- This case involves enforcement of a Board order finding Starbucks violated the NLRA by restricting pro-union buttons and by discharging two pro-union employees, Agins and Gross.
- Starbucks adopted a dress code and allowed only a single pro-union button on work clothes, restricting others under a policy framed as protecting public image and safety.
- The Board also found Starbucks illegally discharged Agins for pro-union activity and Gross for union-related activities and performance deficiencies, with the latter ongoing through 2006.
- ALJ Landow found the one-button policy violated 8(a)(1) and the two discharges violated 8(a)(3); the Board affirmed these rulings.
- The Second Circuit (majority) enforces the Board on the dress-code issue, remands Agins’s discharge for Board reconsideration, and remands for a decision on the precise application of a standard when an employee uses obscenities in the presence of customers, with respect to Net result on Gross and Agins.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Starbucks' one-button policy unlawful under NLRA §7/§8(a)(1)? | Board—policy restricts union insignia materially. | Starbucks—limits are necessary for public image. | Yes, improper restriction of union insignia. |
| Was Agins's discharge motivated by union activity? | Agins discharged due to protected activity. | Discharge for disruption and insubordination. | Remanded for Board consideration; initial finding of protection reversed? (remand explicitly stated) |
| Does Atlantic Steel apply to obscenity in presence of customers? | Atlantic Steel applies to workplace outbursts, not customer context. | Atlantic Steel should govern all such cases. | Atlantic Steel not applicable to customer-present context; remand for standard in customer context. |
| Was Gross's discharge lawful given performance deficiencies and union activity? | Union activity tainted his discharge; protected conduct. | Discharge justified by chronic performance deficiencies. | Remand; majority enforces on other issues, but remands this for further proceedings to determine motive. |
Key Cases Cited
- Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793 (U.S. 1945) (recognizes right to wear union insignia and employer limits for special circumstances)
- Atlantic Steel Co., 245 N.L.R.B. 814 (NLRB 1979) (four-factor test for obscenity in the workplace; context matters)
- Dreis & Krump Mfg., Inc., 221 N.L.R.B. 309 (NLRB 1975) (profanity and workplace context, language of shop vs. polite society)
- Verizon Wireless, 349 N.L.R.B. 640 (NLRB 2007) (outburst in presence of customers and protection limits)
- Guard Publishing Co., 571 F.3d 53 (D.C. Cir. 2009) (special circumstances justify limits on union insignia to protect employer image)
- Caval Tool Division, Chromalloy Gas Turbine Corp., 262 F.3d 184 (2d Cir. 2001) (context of Board's deference to empirical findings; substantial evidence standard)