Make Mine a Venti Hazelnut Latte with an F-Bomb

by Cranfill Sumner & Hartzog LLP

In the words of the immortal Yogi Berra, “it’s like déjà vu all over again.”  For the second time in a month, the Nasty Language National Labor Relations Board has decided that an employee should not have been fired for telling a manager to “go f**k himself.”  And this time the confrontation occurred in front of customers.

This latest case arose out of incidents at a Starbucks coffee shop in lower Manhattan.  Joseph Agins was an employee who openly supported various efforts by Local 660, Industrial Workers of the World to unionize four Starbucks locations, including the one at which he worked.  One day during an especially busy period, he asked his assistant manager for assistance but was told to wait for a moment while she finished helping a customer.  He snapped back, “this is bulls**t,” and told the manager that she should just “do everything your damn self.”  Agins was suspended for several days.

Six months later, while off-duty, Agins and a group of fellow union supporters appeared at the store to protest management’s ban on wearing union pins while working.  An off-duty manager approached the group and asked Agins why he wanted to wear a union button.  A heated exchange ensued, complete with hand gestures, during which Agins yelled at the manager, “You can go f**k yourself.”  The scene took place in front of the store’s customers.  Agins was subsequently fired and challenged the termination as unlawful.

The NLRB sided with Agins, finding that the discharge occurred while he was engaged in protected, concerted activity and that his conduct was not so egregious as to lose its legal protections.

Starbucks appealed, however, and the federal appeals court had a very different view of things.  It found that Agins’ conduct lost all legal protection and that the NLRB “improperly disregarded the entirely legitimate concern of an employer not to tolerate employee outbursts containing obscenities in the presence of customers.”  Thus, it remanded the case back to the NLRB with specific instructions to decide what standard should apply when an employee, “while discussing employment issues, utters obscenities in the presence of customers.”

When the case got back to the NLRB, however, things took a different turn.  Rather than following the direction of the court of appeals, the Board blew off the court’s explicit instructions and said that it would simply “assume that Agins’ conduct lost the protection of the Act.”  Unfazed, however, the Board then went on to again conclude that the termination was nonetheless unlawful, this time reasoning that the real motivation behind the discharge was Agins’ activities in support of the union.  That was not a reason that was even mentioned by the Board in its first decision on the case.

One of the Board members wrote a separate opinion in which he expressed concern that the Board had simply ignored the appellate court’s direction to the NLRB to come up with a standard for cases in which employees use obscenities while in the presence of customers.  He noted that the law “does not confer protection upon employees, whether or not they are on duty, to occupy an employer’s premises and disrupt or interfere with normal operations.”

So, what are the takeaways from this case?  Three quickly come to mind:

1.  The NLRB is clearly willing to ignore explicit directions even from a federal appellate court in order to find that an employer acted unlawfully, despite the Board’s own acknowledgement that the offending employee engaged in misconduct that lost all legal protection.

2.  As we noted in a related post just days ago, the Board will invariably give employees who are engaged in activities for the mutual aid and protection of their fellow employees – in this case, Agins’ activities on behalf of the union – a certain amount of leeway to engage in conduct that might be considered inappropriate in other circumstances.  Thus, before taking any action against an offending employee, businesses should closely examine all relevant facts to determine whether taking adverse action would likely trigger an investigation and review by the Board.  Remember, even if the employer ultimately prevails, the road to get there can be long and expensive.

3.  It is absolutely critical that all employers arrange for supervisors and managers to be trained on the basic labor and employment laws, including how they should handle the range of workplace scenarios that they are likely to encounter in the context of their particular circumstances.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Cranfill Sumner & Hartzog LLP | Attorney Advertising

Written by:

Cranfill Sumner & Hartzog LLP

Cranfill Sumner & Hartzog LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.