Starbucks Cleared for Some Anti-Union Actions

     MANHATTAN (CN) – Starbucks did not violate labor laws by limiting the number of union buttons employees can wear, but it still has to answer for firing one of its pro-union workers, the 2nd Circuit ruled.
     The events unfolded after the Industrial Workers of the World launched “a highly visible” campaign in 2004 to organize wage employees in four Manhattan Starbucks coffee shops, according to the federal appeals court.
     In December 2005, the chain fired Joseph Agins from the 9th Street store where he worked as barista. The pro-union employee had been suspended in May 2005 for an outburst in front of an assistant manager, and then fired a few weeks after he got into a heated off-duty exchange outside the coffee shop. Agins had been arguing with an off-duty manager for a different Starbucks location who did not support the union.
     In August 2006, Starbucks fired Daniel Goss, a vocal supporter who worked at the 36th Street location. Around the same time Goss became involved with pro-union activism, he was attending law school and working greatly reduced hours.
     A few weeks before he was fired, Goss had threatened a district manager by saying that it “would be very bad for you to fire” an employee who had been suspended.
     Starbucks cited this incident, poor performance reviews and low attendance as the basis for his termination.
     In March 2006, Starbucks entered into a settlement with the National Labor Relations Board when it was apparent that the chain was using some illegal policies to counter pro-union efforts.
     Though Starbucks had initially barred employees from wearing pro-union buttons on their uniforms, the settlement put a one-button limit in place.
     An administrative law judge with the labor board later found that the one-button limit was illegal and that the discharges of Agins and Goss were retaliatory.
     After the board petitioned the 2nd Circuit to enforce this August 2010 finding, Starbucks cross-petitioned for review.
     A three-judge panel upheld the dress code, and the firing of Goss, but called for further proceedings as to the chain’s treatment of Agins.
     While “the right of employees to wear union insignia at work has long been recognized as a reasonable and legitimate form of union activity,” the law allows for “special circumstances,” such as employee safety and image, to curtail the right, according to the three-judge panel.
     “Starbucks contends that the board’s rule permits employees to wear an unlimited number of buttons and would convert them into ‘personal message boards’ and ‘seriously erode’ the information conveyed by Starbucks-issued pins,” Judge Jon Newman wrote for the court. “We conclude that the board has gone too far in invalidating Starbucks’s one button limitation.
     Starbucks furthermore did not violate labor law in firing Goss, who demonstrated consistently poor work performance and did not try to improve after receiving poor reviews, the court found.
     “The issue is whether Starbucks would have fired Gross absent his union activity,” Newman wrote. “Here, there was strong evidence that it would have done so.”
     The findings about Agins’ discharge may buckle as well since the court found that Starbucks may have an “entirely legitimate concern … not to tolerate employee outbursts containing obscenities in the presence of customers.”
     The court remanded this issue back to the labor board for a new review in the correct standard.
     In a concurring opinion, Judge Robert Katzmann said that the board may have used the correct test after all.
     “I am not convinced that the remaining factors become irrelevant simply because the outburst occurred within earshot of customers,” Katzmann wrote. “In my opinion, the subject matter of the discussion, the nature of the employee’s outburst, and whether the outburst was provoked by an employer’s unfair labor practice could, in fact, prove highly relevant in certain situations.”

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