Starbucks Corporation d/b/a Starbucks Coffee Company

National Labor Relations Board - Board Decisions

Jun 16, 2014

360 N.L.R.B. 1168 (N.L.R.B. 2014)

1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 134
Starbucks Corporation d/b/a Starbucks Coffee Com-
pany and Local 660, Industrial Workers of the
World. Case 02–CA–037548
June 16, 2014
SUPPLEMENTAL DECISION AND ORDER1
BY MEMBERS MISCIMARRA, HIROZAWA, AND SCHIFFER
On August 26, 2010, the National Labor Relations
Board issued a decision in this case, finding, among oth-
er things, that the Respondent violated Section 8(a)(3)
and (1) of the Act by terminating employee Joseph
Agins, an open union supporter.2 Agins, while engaged
in union activity during off-duty hours, uttered profani-
ties at a Starbucks manager in the presence of customers.
The Board adopted the administrative law judge’s find-
ing that, under the standard set forth in Atlantic Steel Co.,
245 NLRB 814 (1979), Agins’ conduct was not so egre-
gious as to lose him the protection of the Act.
Thereafter, the Board filed an application for enforce-
ment in the United States Court of Appeals for the Sec-
ond Circuit, and the Respondent filed a cross-petition for
review. On review, the court “conclude[d] that the At-
lantic Steel test is inapplicable to an employee’s use of
obscenities in the presence of an employer’s customers.”3
The court remanded the issue of Agins’ discharge to the
Board for further proceedings consistent with the court’s
opinion.4
On October 31, 2012, the Board notified the parties
that it had accepted the court’s partial remand and invited
all parties to submit statements of position concerning
the issue raised by the remand. The General Counsel and
the Respondent each filed a statement of position.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having accepted the remand, we accept the court’s
opinion as the law of the case. Accordingly, without
applying Atlantic Steel, we have reconsidered the lawful-
ness of Agins’ discharge. Having done so, we reaffirm,
for the reasons set forth below, that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by discharging
Agins, even assuming that Agins’ conduct on November
21, 2005, lost the protection of the Act.
Background
Between 2004 and 2007, the Charging Party Union
engaged in a campaign to organize four of the Respond-
ent’s Manhattan stores. Agins was employed by the Re-
spondent as a barista at its 9th Street store. Agins be-

1 Member Johnson is recused and did not participate in the consid-
eration of this case.
2 355 NLRB 636 (2010), reaffirming 354 NLRB 876 (2009).
3 NLRB v. Starbucks Corp., 679 F.3d 70, 80 (2d Cir. 2012).
4 Id. at 82.
came an open and active supporter of the Union in 2005.
He was identified as a likely supporter of the Union by
District Manager William Smith in an April 25, 2005
email. Subsequently, Agins handed out prounion flyers
and participated in union protests and rallies outside the
Respondent’s stores.
On May 14, 2005,5 Agins was involved in an incident
with Assistant Store Manager Tanya James. Agins asked
James to help him during a particularly busy period.
James, who was otherwise occupied, told Agins he
would have to wait. When James came to help, Agins
said it was “about damn time.” He then noisily shoved a
blender in the sink. Agins also stated to James that “this
is bullshit,” and he told James to “do everything your
damn self.” James ordered Agins to punch out, and
Agins was suspended for several days. The Respondent
prepared a written warning that summarized the incident
and stated, “[T]he aforementioned behavior, if repeated
will result in termination of employment at Starbucks
Corporation.” The judge credited Agins’ testimony that
he never received this warning. Agins apologized for his
outburst after he was called back to work.
District Manager Smith prohibited employees at the
9th Street store from wearing union pins. On November
20, Smith ordered those employees, including Peter
Montalbano, to remove the pins on pain of being sent
home. On November 21, Agins entered the 9th Street
store while off duty, along with several other off-duty
employees, in order to protest Smith’s pin prohibition.
Agins and the other off-duty employees were wearing
union pins, and the protest was timed to coincide with
Montalbano’s shift.
Shortly after the group entered the store, Ifran Yablon,
an off-duty assistant manager from a different Starbucks
store who was a “regular customer” at the 9th Street
store, approached Agins and asked him what the union
button was for. The judge found from the credited evi-
dence that Yablon’s inquiry was “meant to be confronta-
tional” and precipitated the ensuing incident. Agins be-
lieved that Yablon had previously made derogatory re-
marks to Agins’ father about the father’s support for the
Union.6 After some discussion about the Union and the
benefits offered by Starbucks to its employees, Agins
brought up Yablon’s insult to Agins’ father, and the con-
versation escalated into a heated confrontation, during
which both men spoke loudly and used hand gestures and
obscenities. At some point, Agins told Yablon, “You can

5 All dates are 2005, unless otherwise stated.
6 The Union had leafleted one of the Respondent’s promotional
events in the summer of 2004, and both Agins and his father were
present. Agins testified that his father pointed Yablon out and reported
that he had made derogatory remarks.
STARBUCKS COFFEE CO. 1169
go fuck yourself, if you want to fuck me up, go ahead,
I’m here.”
Agins’ friends intervened to stop the confrontation,
and Agins withdrew to a table while Assistant Store
Manager James told Yablon to “leave it alone.” Yablon
“chuckled” and left the store shortly thereafter. James
then admonished Agins. Agins listened to James and
remained seated with the group. He did not utter obscen-
ities or make any threatening gestures toward James.
James did not call the police or ask Agins to leave the
store. Agins and his companions left the store about 10
minutes later.
Several weeks later, on December 12, the Respondent
discharged Agins purportedly for disrupting business on
November 21. The memorandum documenting the dis-
charge, prepared by Store Manager Julian Warner, stated
that Agins was ineligible for rehire because “[p]artner
was insubordinate and threatened the store manager.
Partner strongly support [sic] the IWW union.”
The General Counsel argued that Agins’ discharge vio-
lated the Act under two separate theories. First, he con-
tended that Agins was engaged in protected, concerted
activity at the 9th Street store on November 21 when he
protested against the no-union button policy in support of
employee Montalbano, and that the incident with Yablon
during that protest was not so egregious as to deprive
Agins of the protection of the Act under Atlantic Steel,
above. Second, the General Counsel argued that the dis-
charge was also unlawful under the test set forth in
Wright Line.7 Both theories were fully litigated, and the
administrative law judge found the violation on both
grounds. The Board adopted the judge’s finding that
Agins’ discharge violated Section 8(a)(3) and (1) under
an Atlantic Steel analysis, but did not reach the judge’s
Wright Line analysis and findings. 355 NLRB at 636 fn.
3.
The Second Circuit’s Opinion
The court enforced the Board’s order as to several un-
fair labor practices the Respondent did not challenge,8

7 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
8 Specifically, the court enforced the Board’s unopposed findings
that the Respondent violated the Act by (a) unlawfully prohibiting
employees from discussing the Union while off duty; (b) discriminato-
rily prohibiting employees at its Union Square East store from using a
company bulletin board to post items of a nonwork nature, including
materials relating to the Union; (c) prohibiting off-duty employees
employed at its Union Square East store from entering the back of the
store; (d) promulgating and maintaining a rule prohibiting employees
from talking about the Union while allowing other nonwork-related
discussions; (e) promulgating and maintaining a rule prohibiting em-
ployees from talking about terms and conditions of employment; (f)
disciplining employee Tomer Malchi pursuant to its unlawful rule
prohibiting employees from talking about the Union while allowing
and granted the Respondent’s cross-petition as to two
others.9 Starbucks Corp., 679 F.3d at 82. Turning to
Agins’ discharge, the court found that the Board’s analy-
sis under Atlantic Steel “improperly disregarded the en-
tirely legitimate concern of an employer not to tolerate
employee outbursts containing obscenities in the pres-
ence of customers.” Id. at 79. The court stated that At-
lantic Steel’s four-factor test was formulated in the con-
text of employee outbursts on the factory floor or in a
backroom office, where the primary concern is whether
the outburst would impair employer discipline. Id. The
court further stated that the first Atlantic Steel factor—
the place of the outburst—“serves to distinguish out-
bursts in the presence of other employees from those
away from other employees or in the course of grievance
proceedings or contract negotiations. It has nothing to do
with public venues where customers are present.” Id.
The court remanded the issue of Agins’ discharge to the
Board, stating that the Board should have the opportunity
to decide what standard should apply when an employee,
“while discussing employment issues, utters obscenities
in the presence of customers.” Id. at 80.
Discussion
As stated above, we have accepted as the law of the
case the court’s finding that the Atlantic Steel analysis is
inapplicable in this case. Accordingly, we shall not ap-
ply that analysis here and shall assume that Agins’ No-
vember 21, 2005 conduct lost the protection of the Act.
Nevertheless, as more fully set forth below, we find that
Agins’ discharge violated Section 8(a)(3) and (1) under a
Wright Line analysis. In particular, we find that the rec-
ord establishes that the Respondent’s discharge decision
was motivated in part by Agins’ prounion activities,
which were clearly protected. In fact, as set forth above,
the discharge form completed by Agins’ store manager
noted that Agins was ineligible for rehire in part because
“Partner strongly support[s] the . . . union.”10
Mixed motive cases are subject to the test set forth in
Wright Line. To establish a violation of Section 8(a)(3)

other nonwork-related discussions; and (g) discriminatorily preventing
Malchi from working shifts at other Starbucks locations.
9 Disagreeing with the Board, the court found lawful the Respond-
ent’s policy, implemented in 2006, limiting employees to wearing one
union button, and the Respondent’s discharge of employee Daniel
Gross.
10 Because we are assuming that Agins’ conduct on November 21
lost the protection of the Act, we need not pass on the standard to be
applied in deciding whether a retail employee engaged in misconduct in
the presence of customers loses the protection of the Act. Accordingly,
we do not endorse our concurring colleague’s articulation of a new
standard, his interpretation or application of Restaurant Horikawa, 260
NLRB 197, 198 (1982), or any of his rationale for finding that Agins
lost the protection of the Act under that standard.
1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
under Wright Line, the General Counsel must first show,
by a preponderance of the evidence, that an employee’s
union activities were a motivating factor in the employ-
er’s decision to take adverse action against the employee.
Mesker Door, Inc., 357 NLRB 591, 592 (2011). The
elements required to support a finding of discriminatory
motivation are union activity by the employee, employer
knowledge of that activity, and antiunion animus by the
employer. Id.
Here, as found by the judge, Agins openly participated
in many union rallies and protests beginning in May
2005. The Respondent knew about that activity and sus-
pected that Agins was a union supporter as early as
April. The Respondent engaged in numerous unfair la-
bor practices that demonstrate antiunion animus.11
Moreover, as noted previously, the Respondent’s written
documentation regarding Agins’ discharge, prepared by a
store manager, expressly stated Agins’ “strong[] support”
for the Union as a reason he would be ineligible for re-
hire. Based on the foregoing evidence, we find that the
General Counsel met his Wright Line burden of showing
that Agins’ union activities were a motivating factor in
his discharge.
Once the General Counsel has met his initial burden
under Wright Line, the burden of persuasion shifts to the
employer to “demonstrate that the same action would
have taken place even in the absence of the protected
conduct.” Wright Line, 251 NLRB at 1089. However, to
meet its Wright Line defense burden, “[a]n employer
cannot simply present a legitimate reason for its action
but must persuade by a preponderance of the evidence
that the same action would have taken place even in the
absence of the protected activity.” W. F. Bolin Co., 311
NLRB 1118, 1119 (1993), petition for review denied 70
F.3d 863 (6th Cir. 1995), enfd. mem. 99 F.3d 1139 (6th
Cir. 1996).
The Respondent asserts that Agins’ discharge was
based on a final warning that it purportedly issued to
Agins for his conduct on May 14, and that the discharge
(on December 12) was consistent with its previous en-
forcement of valid, nondiscriminatory rules against other
employees.12 The record, however, does not support
either of those claims.
First, the record reveals that the Respondent’s dis-
charge of Agins was inconsistent with the Respondent’s
more lenient treatment of other employees who engaged
in similar or worse misconduct that, like Agins’ Novem-

11 See above fn. 8.
12 The Respondent cites rules prohibiting harassment of employees,
customers, or vendors; prohibiting violence or threatened violence; and
requiring employees to “provide a great work environment and treat
each other with respect and dignity.”
ber 21 outburst, occurred in the presence of customers.13
Although the Respondent relies on evidence that other
discharged employees engaged in similarly disruptive or
insubordinate misconduct, Respondent’s track record
fails to establish that it would have terminated Agins in
the absence of his protected prounion activities.14
Second, Agins’ misconduct was provoked by Yablon,
an off-duty supervisor who similarly used profanity dur-
ing the confrontation.15 There is no evidence that Yablon
received any discipline for the incident or that the Re-
spondent considered this provocation in deciding wheth-
er to discharge Agins for his part in the incident. See
Crown Cork & Seal Co., 255 NLRB 14, 39 (1981) (“It is
also significant in assessing Respondent’s motivation in
imposing the discipline that the employees and supervi-
sors who engaged in the actually ‘disruptive’ activities
for which [the employee] was held ‘responsible’ were
never themselves disciplined” and supervisor “who
sought to exacerbate the ‘disruption’” by using foul and
abusive language towards another employee “was never
questioned or disciplined . . . .”), enfd. mem. 691 F.2d
506 (9th Cir. 1982).
Third, the Respondent was unable even to identify the
Respondent official(s) who made the decision to termi-
nate Agins. District Manager Smith, who normally

13 Employee Troy Bennett received only a written warning for curs-
ing on the selling floor in the presence of customers and yelling at his
supervisor. Employee Claudia T. received a written warning for argu-
ing and cursing in the customer area. Employee Noah Francis received
a final written warning for making sexually suggestive comments
“about a partner’s/customer’s body or dress,” but was not discharged
and instead received another warning when, 2 weeks later, he engaged
in “unwanted physical conduct by grabbing a customer and dancing
with her,” leaving the customer and her husband visibly upset. Em-
ployee Kevin Bruckner received only warnings for a series of incidents
in which he told a coworker what a bad job she was doing in front of a
customer and said “you can fucking write me up if you like” to an
assistant store manager in front of customers and other employees.
14 An employer does not sustain its Wright Line defense burden
“simply by showing that examples of consistent past treatment out-
number the General Counsel’s examples of disparate treatment.”
Avondale Industries, 329 NLRB 1064, 1066 (1999). Rather, the Re-
spondent “must prove that the instances of disparate treatment . . . were
so few as to be an anomalous or insignificant departure from a general
consistent past practice.” Id. The record in the instant case is insuffi-
cient to support a finding that Respondent satisfied this burden. See
Septix Waste, Inc., 346 NLRB 494, 496–497, 505–506 (2006); Synergy
Gas Corp., 290 NLRB 1098, 1103 (1988) (one anomalous instance of
disparate treatment insufficient).
15 We note that, in contrast to the recitation of facts by our concur-
ring colleague, the administrative law judge found, based on the credit-
ed evidence, that Agins and several other employees entered the store
wearing union buttons in support of a worker there who had been re-
quired to remove his on pain of being sent home. The group engaged
in no acts of protest except wearing union buttons while seated at the
rear of the facility. Then Yablon, a manager from another store, “pre-
cipitated” a heated discussion with Agins in which “both men made
hand gestures and used profanity.” After 10 minutes, the group left.
STARBUCKS COFFEE CO. 1171
makes discharge decisions, testified that he did not make
the decision and was not present when the decision was
made. Smith also testified that the decision was made
when Director of Partner Resources Traci Wilk felt they
“had enough,” but he could not recall the details of the
termination. Wilk herself testified that her role was sole-
ly to provide a recommendation. The Respondent’s fail-
ure to identify the decision maker and present his or her
testimony concerning the reason or reasons for the termi-
nation further weakens its Wright Line defense.16 See
Boston Mutual Life Insurance, 259 NLRB 1270, 1282
(1982) (where discipline normally imposed by regional
management, termination of employee by corporate vice
president supported inference that protected activity
played a role in discharge decision), enfd. 692 F.2d 169
(1st Cir. 1982).
Fourth, the Respondent presented an exaggerated ver-
sion of Agins’ actions on November 21 that the judge
largely discredited.17 The judge similarly found that the
Respondent’s characterization of Agins’ history of inter-
personal issues was “exaggerated, at best.” As the judge
observed, the proffer of false reasons for Agins’ dis-
charge permits an inference that the real reason was an
unlawful one that the Respondent seeks to conceal. Key
Food, 336 NLRB 111, 114 (2001).
Finally, the judge credited Agins’ testimony that he
never received a warning (final or otherwise) regarding
the May 14 incident. This critically undermines the Re-
spondent’s argument that Agins can only be considered
comparable to discharged employees who engaged in
misconduct following the issuance of a final warning. In
addition, although Agins received a suspension in con-
nection with the May 14 incident, it was more than 6

16 The Respondent’s documentary evidence was similarly incom-
plete or unworthy of credence. Assistant Store Manager James testified
that she prepared an incident report outlining the events of the evening
of November 21 on a form maintained by the Respondent. When she
was shown a page containing five lines of handwritten narrative, James
testified she was pretty sure she had written more. No other document
alleged to be James’ initial statement was offered into evidence. In-
stead, the Respondent offered into evidence an email containing a nar-
rative of what purportedly had occurred. However, that email was sent
from the 9th Street store’s generic email account with no indication of
its author or sender, and no witness, including James, testified that he
or she had written or sent it. The judge properly found that this docu-
ment’s “creation and maintenance by the Respondent raises questions
about who authored it and what its ostensible purpose might have
been.”
17 As more fully set forth in the judge’s decision, the Respondent
claimed that Agins resisted the efforts of his companions to intervene in
the argument, that Agins continued to follow Yablon to the door, that
James tried to calm Agins down but that Agins continued to move
towards the door yelling profane comments, and that Agins made
threatening gestures at James. The judge explicitly discredited all of
these assertions. Starbucks, above, 354 NLRB at 905.
months before his discharge. Moreover, even taking into
account the May 14 incident, the Respondent’s explicit
reference to Agins’ strong union support in the discharge
documentation casts considerable doubt on the Respond-
ent’s claim that Agins would have been discharged for
the November 21 conduct in the absence of his protected
activity.
In light of the foregoing considerations, and especially
given the direct, documentary evidence of unlawful mo-
tivation, we find that the Respondent failed to meet its
burden to show that it would have terminated Agins in
the absence of his protected union activity. We accord-
ingly conclude that even assuming Agins’ actions on
November 21 lost the protection of the Act, his discharge
violated Section 8(a)(3) and (1).
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(3) and
(1) by discriminatorily discharging employee Joseph
Agins, we shall order the Respondent to offer Agins full
reinstatement to his former position or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privi-
leges previously enjoyed. In addition, we shall order the
Respondent to make Agins whole for any loss of earn-
ings and other benefits suffered as a result of the unlaw-
ful action against him. Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6
(2010).
The Respondent shall compensate Agins for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and file a report with the Social Security
Administration allocating the backpay award to the ap-
propriate calendar quarters.
The Respondent shall also be required to remove from
its files any references to the unlawful discharge of
Agins, and to notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Starbucks Corporation d/b/a Starbucks Cof-
fee Company, New York, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Discharging or otherwise discriminating against
employees for supporting Local 660, Industrial Workers
of the World or any other labor organization.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
employee Joseph Agins full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
(b) Make Joseph Agins whole for any loss of earnings
and other benefits suffered as a result of the unlawful
discrimination against him, in the manner set forth in the
remedy section of this decision.
(c) Compensate Joseph Agins for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay
award, and file a report with the Social Security Admin-
istration allocating the backpay award to the appropriate
calendar quarters.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Joseph Agins, and within 3 days thereafter, notify Agins
in writing that this has been done and that the discharge
will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its 9th Street facility in New York, New York, copies of
the attached notice marked “Appendix.”18 Copies of the
notice, on forms provided by the Regional Director for
Region 2, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,

18 The notice has been modified to conform with Durham School
Services, 360 NLRB 694 (2014). If this Order is enforced by a judg-
ment of a United States court of appeals, the words in the notice read-
ing “Posted by Order of the National Labor Relations Board” shall read
“Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board.”
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since December 12, 2005.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 2 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
MEMBER MISCIMARRA, concurring.
My colleagues find that the Respondent engaged in an-
tiunion discrimination that violated Section 8(a)(3) and
(1) of the Act by discharging employee Joseph Agins.
Although Agins engaged in a November 21 outburst that
precipitated his discharge, the Respondent’s discharge
documentation expressly indicated, in part, that he
“strongly support[ed] the . . . union.” Even if Agins’
November 21 outburst lost the Act’s protection, my col-
leagues find that (i) the record contains direct evidence
that the Respondent was motivated, in part, by Agins’
other prounion activities that were protected under the
Act; (ii) the General Counsel under Wright Line estab-
lished that protected activity was at least a “motivating
factor” in the Respondent’s decision to discharge Agins;1

1 In Wright Line, the Board explicitly characterized the General
Counsel’s initial burden as requiring proof that the challenged adverse
action was motivated by antiunion animus. The Board stated that the
General Counsel must, as an initial matter, make “a prima facie show-
ing sufficient to support the inference that protected conduct was a
‘motivating factor’ in the employer’s decision.” 251 NLRB at 1089
(emphasis added). Contrary to the three-element formulation set forth
in the majority opinion in this case, generalized antiunion animus does
not satisfy the initial Wright Line burden absent evidence that the chal-
lenged adverse action was motivated by antiunion animus. See, e.g.,
Roadway Express, 347 NLRB 1419, 1419 fn. 2, 1422–1424 (2006)
(evidence of union’s generalized animus towards financial core payers
insufficient under the circumstances to sustain General Counsel’s bur-
den of proof); Atlantic Veal & Lamb, Inc., 342 NLRB 418, 418–419
(2004) (finding that employer harbored animus against union activity,
but that there was insufficient evidence to establish that animus against
employee Rosario’s union activity was a motivating factor in the deci-
sion not to recall him), enfd. 156 Fed. Appx. 330 (D.C. Cir. 2005). See
also Valley Health System, LLC, 352 NLRB 112, 112 fn. 2 (2008)
(Member Schaumber notes that the Board and courts sometimes char-
acterize the initial Wright Line burden as “adding as an independent
fourth element the necessity for there to be a causal nexus between the
union animus and the adverse employment action” [citations omitted]).
STARBUCKS COFFEE CO. 1173
and (iii) although some employees were discharged for
misconduct similar to Agins’ November 21 outburst,
other employees engaged in similar or worse misconduct
without being discharged, and the latter examples
(among other things) prevent the Respondent from satis-
fying its burden, under Wright Line, to prove it would
have discharged Agins in the absence of antiunion moti-
vation.
The facts recited above are undisputed, including the
discharge documentation that expressly referred to
Agins’ prounion activities, and examples of other em-
ployees who received more lenient treatment for compa-
rable or worse misconduct. Consequently, I join in my
colleagues’ finding that the record supports the judge’s
finding that Agins’ employment termination violated the
Act.2
In light of that finding, my colleagues do not make any
findings regarding whether Agins’ conduct on November
21 actually lost the Act’s protection. For the same rea-
sons, they find it unnecessary to pass on the standard we
should apply to decide whether a retail employee who
engages in misconduct in the presence of customers loses
the protection of the Act. However, the Second Circuit
remanded the case specifically for the Board to make
these determinations. Accordingly, I would resolve both
of those issues. Doing so, I would find that Agins’ con-
duct was unprotected, and the Respondent’s decision to
terminate Agins’ employment would have been lawful
had the Respondent acted based on that incident alone.
This case is on remand from the Second Circuit, which
criticized the judge’s finding that Agins’ November 21
outburst—though inappropriate—was nonetheless pro-
tected under the Act. The court of appeals noted that
employee misconduct in the presence of customers is not
subject to the standard articulated in Atlantic Steel Co.,
245 NLRB 814, 816 (1979). As the court of appeals
reasoned:
We think the analysis of the ALJ and the Board im-
properly disregarded the entirely legitimate concern of
an employer not to tolerate employee outbursts con-

More generally, the Board’s task in all cases that turn on motivation “is
to determine whether a causal relationship existed between employees
engaging in union or other protected activities and actions on the part of
the employer which detrimentally affect” their employment. Wright
Line, above, 251 NLRB at 1089.
2 Unlike my colleagues, however, I do not rely on the Respondent’s
failure to introduce evidence that it disciplined Assistant Manager Ifran
Yablon as support for this violation. Even assuming Yablon was not
disciplined, that fact would be relevant to the Wright Line analysis only
if Yablon and Agins were similarly situated, despite the fact that they
held different positions and worked in different stores under different
immediate supervision. Given the weight of the other evidence sum-
marized above, I find it unnecessary to resolve that issue.
taining obscenities in the presence of customers. When
the Board formulated its four-factor test in Atlantic
Steel for determining whether an employee’s obsceni-
ties would cause the employee to lose the protection of
the Act, it was not considering obscenities in a public
place in the presence of customers. The context was the
workplace, e.g., the factory floor or a backroom office,
and the concern was whether the outburst would impair
employer discipline.
679 F.3d at 79 (emphasis added).
Apart from concluding that Atlantic Steel “is inappli-
cable to an employee’s use of obscenities in the presence
of an employer’s customers,” id. at 80, the court posed
an additional question for resolution by the Board. In
reference to Agins’ off-duty status when his November
21 outburst occurred in the Respondent’s store, the court
stated that the Board should address “whether an em-
ployee’s outburst in which obscenities are used in the
presence of customers loses otherwise available protec-
tion if the employee is off duty although on the employ-
er’s premises.” Id.
I agree with the court that the central concern underly-
ing an Atlantic Steel analysis is the potential for work-
place outbursts to undermine an employer’s authority,
and that such an analysis is ill-suited to determining
whether employee outbursts in the presence of customers
lose the Act’s protection because of their potential to
harm the employer’s business. Thus, I find that the judge
incorrectly relied on Atlantic Steel when evaluating
Agins’ November 21 outburst. In my view, the correct
standard, as the Board previously held in Restaurant
Horikawa, 260 NLRB 197 (1982), is that retail employ-
ees lose the Act’s protection if their conduct causes dis-
ruption of or interference with the business.3 The Board
has indicated that “different rules” apply to retail estab-

3 In Restaurant Horikawa, above, 30 individuals—including em-
ployee Kubota—engaged in a protected demonstration outside the
restaurant, but then entered the restaurant and “paraded boisterously
about” during the dinner hour for 10 to 15 minutes. In these circum-
stances, the Board found that Kubota lost the Act’s protection and was
lawfully discharged. The Board has applied this “disruption and inter-
ference” standard in subsequent cases involving retail establishments.
See, e.g., Saddle West Restaurant, 269 NLRB 1027, 1042–1043 (1984)
(single comment in front of a customer about boycotting the restaurant
not so disruptive as to lose the protection of the Act); Thalassa Restau-
rant, 356 NLRB 1000, 1000 fn. 3 (2011) (Board majority, with Mem-
ber Hayes dissenting, finds that an employee who “briefly” entered
restaurant with group of nonemployees during off-peak time to deliver
a letter protesting alleged labor law violations did not lose the protec-
tion of the Act where there was no evidence that the group disturbed
the handful of patrons present, blocked ingress or egress of any indi-
vidual, was violent or caused damage, or prevented any employee from
performing his work).
1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lishments, including restaurants, based on the unique
challenges associated with their business:
The Board has traditionally acknowledged the necessi-
ty for applying different rules to retail enterprises from
those to manufacturing plants with respect to the right
of employees to engage in union activity on their em-
ployer’s premises. Specifically, the Board has recog-
nized that the nature of retail establishments, including
restaurants, requires that an atmosphere be maintained
in which customers’ needs can be effectively attended
to and that, consequently, a broad proscription of un-
ion activity in areas where customers are present is not
unlawful. As a result, the Board has allowed retail es-
tablishments to impose no-solicitation rules which pre-
clude soliciting in areas frequented by customers so as
to prevent disruption of the customer-salesperson rela-
tionship. See Marshall Field & Company, 98 NLRB
88, 92 (1952), enfd. as modified 200 F.2d 375 (7th Cir.
1952). Although a no-solicitation rule is not involved
in the instant case, we find the principles which under-
lie the broad proscription of union solicitation in a retail
setting are equally applicable to conduct of this
kind. . . . [W]e conclude that this uninvited invasion of
Respondent’s restaurant premises transgressed the
boundaries by which concerted activity, even that
which, as here, was nonviolent, and in protest of Re-
spondent’s unlawful conduct, is deemed protected by
the Act. Consequently, the demonstrators inside the
restaurant did not enjoy the Act’s protection.
260 NLRB at 198 (emphasis added; footnotes omitted).
Regarding the additional question posed by the court
of appeals, I would find that retail employees lose the
Act’s protection, to the extent it is “otherwise available,”
if they enter a retail establishment while off-duty and,
while inside the store, engage in disruptive conduct in the
presence of customers. Preliminarily, the Act does not
confer protection upon employees, whether or not they
are on duty, to occupy an employer’s premises and dis-
rupt or interfere with normal operations. NLRB v.
Fansteel Metallurgical Corp., 306 U.S. 240 (1939); Qui-
etflex Manufacturing Co., 344 NLRB 1055 (2005); see
also Restaurant Horikawa, 260 NLRB at 198–199 (off-
duty employee’s disruptive protest inside restaurant
found to be unprotected, and Board “attach[es] no signif-
icance” to individual’s status as an employee and wheth-
er any rules prohibited employees from entering the res-
taurant while not working).
Moreover, the relevant standard—where an employ-
ee’s actions lose protection if they cause actual or likely
disruption to the business—is satisfied in the instant case
because of the November 21 actions by Agins, regardless
of whether he was on duty or off duty, and whether or
not customers were aware of his employee status. Alt-
hough the Respondent’s employees prepare beverages,
process payments, and clean and stock the store, the
“business” of Starbucks—like most retail establish-
ments—clearly requires maintenance of a retail environ-
ment that is appealing to customers. Indeed, the Re-
spondent’s Employee Handbook indicates that providing
“a comfortable and upbeat meeting place” is an essential
part of its business model.
In the instant case, off-duty employee Agins entered a
Starbucks store with “several other individuals” for the
purpose of conducting a protest; there was a “heated”
angry exchange with a “regular customer” at the store
(Ifran Yablon, who was an off-duty manager from anoth-
er store); and Agins stated in a raised voice: “You can go
fuck yourself, if you want to fuck me up, go ahead, I’m
here.”4 According to the judge, “Agins became involved
in an altercation with a customer in Respondent’s retail
facility,” and “the argument . . . carried with it a likeli-
hood that it could have resulted in a disruption in busi-
ness as both employees and customers may have over-
heard the exchange.” The judge—though finding that
Agins’ conduct was not as extreme or prolonged as de-
scribed by the Respondent’s witnesses—described
Agins’ actions as “disruptive conduct” that included the
“use of profanity.”
Here, as in Restaurant Horikawa, the employee con-
duct “interfered with Respondent’s ability to serve its
patrons in an atmosphere free of interruption and un-
wanted intrusion; and it is likely that such conduct in-
fringed on the customers’ dining enjoyment. Such an
invasion of an employer’s premises might be hard to find
warranted even in an industrial setting. In a restaurant or
other retail establishment it is wholly unwarranted and
cannot be justified regardless of purpose or origin.” 260
NLRB at 198 (footnote omitted). Because Agins entered
the Respondent’s retail store for the purpose of conduct-
ing a protest, and considering the “business” of the Re-
spondent and the judge’s conclusion that Agins engaged
in “disruptive conduct” with a “likelihood” that it “could
have resulted in a disruption in business,” I would find
Agins’ actions to be unprotected by the Act.
For these reasons, I concur in the majority’s decision.

4 While Yablon may have initiated the encounter by asking Agins
what his union button was for, the encounter escalated into a heated,
obscenity-laced confrontation only after Agins brought up Yablon’s
earlier insult to Agins’ father, as my colleagues acknowledge. Thus, I
need not decide whether Agins would have lost the Act’s protection
under Restaurant Horikawa were it shown that Yablon instigated the
disruption.
STARBUCKS COFFEE CO. 1175
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against you for supporting Local 660, Industrial Workers
of the World or any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Joseph Agins full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Joseph Agins whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest compounded
daily.
WE WILL compensate Joseph Agins for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file a report with the Social Security
Administration allocating the backpay award to the ap-
propriate calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of employee Joseph Agins, and WE WILL,
within 3 days thereafter, notify Agins in writing that this
has been done and that the discharge will not be used
against him in any way.
STARBUCKS CORP. D/B/A STARBUCKS COFFEE
CO.
The Board’s decision can be found at
www.nlrb.gov/case/02–CA–037548 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273–1940.