The Fifth Circuit vacated an order from the Biden-era National Labor Relations Board finding that Starbucks unlawfully discharged a union-supporting employee who repeatedly used extreme profanity toward his coworkers and supervisors. The Fifth Circuit concluded that the Board failed to consider evidence that Starbucks had legitimate, non-discriminatory reasons for firing the employee.
Although the Fifth Circuit sent the case back to the Board instead of definitively rejecting the Board’s theory, its decision underscores that the Board cannot simply brush aside evidence supporting employers’ discipline of employees by minimizing serious employee misconduct as protected union activity. Even so, the Board remains inclined to view discipline skeptically when employers impose it during union organizing campaigns.
Employers should review their workplace conduct policies, clearly communicate their standards on profanity, apply discipline consistently, and document their decisions with evidence. In matters involving union activity, employers should carefully document comparator evidence, prior warnings, and the business reasons supporting discipline.
Members of the Center for Workplace Compliance (CWC), our affiliated nonprofit membership association, can read more here.