The F-word and union buttons

This case tells us that Starbucks doesn't want its employees unionized. The National Labor Relations Board found that Starbucks committed unfair labor practices in the course of its anti-union campaign in Manhattan. Starbucks did not challenge all the NLRB's negative findings, but it does succeed in overturning the ones that it does challenge.

The case is National Labor Relations Board v. Starbucks Corporation, decided on May 10. Here are the violations that Starbucks committed (and does not challenge in the Second Circuit): "prohibiting employees from discussing the union or the terms and conditions of their employment; prohibiting the posting of union material on bulletin boards in employee areas; preventing off-duty employees from entering the back area of one of the stores; and discriminating against pro-union employees regarding work opportunities." And you thought Starbucks was a hip and happening place. But while the NLRB found that Starbucks violated the labor laws in preventing employees from wearing more than one pro-union button at work, the Second Circuit (Newman, Katzmann and Winter) says this was legal.

The Starbucks dress code tells me that Starbucks is as corporate as any other business. "The purpose of the dress policy, according to Starbucks's employee handbook, is to ensure that partners 'present a clean, neat, and professional appearance appropriate of [sic] a retailer of specialty gourmet products.' Additionally, Starbucks encourages employees to wear multiple pins and buttons issued by Starbucks as part of its employee-reward and product-promotion programs. The ALJ found that many of the adornments worn by employees are not obviously related to employee programs, and that the resulting public image is of a uniformed employee wearing a variety of unrelated pins and buttons on their hats and aprons."

Starbucks told employees that it could not wear more than one pro-union button. While the NLRB said this was an unfair labor practice, the Second Circuit disagrees. True, employees are allowed to wear union insignia at work. But Starbucks complains that the NLRB's ruling allows 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." Individuality is not valued at Starbucks; the corporate message is. The Court of Appeals says:

We conclude that the Board has gone too far in invalidating Starbucks's one button limitation. As the Board has previously recognized, "Special circumstances justify restrictions on union insignia or apparel when their display may . . . unreasonably interfere with a public image that the employer has established." Starbucks is clearly entitled to oblige its employees to wear buttons  promoting its products, and the information contained on those buttons is just as much a part of Starbucks's public image as any other aspect of its dress code. But the company is also entitled to avoid the distraction from its messages that a number of union buttons would risk. The record reveals that one employee attempted to display eight union pins on her pants, shirts, hat, and apron. Wearing such a large number of union buttons would risk serious dilution of the information contained on Starbucks's buttons, and the company has a "legitimate, recognized managerial interest[]" in preventing its employees from doing so. The company adequately maintains the opportunity to display pro-union sentiment by permitting one, but only one, union button on workplace clothing. Starbucks has met its burden of establishing that the one button restriction is a necessary and appropriate means of protecting its legitimate managerial interest in displaying a particular public image through the messages contained on employee buttons.

Another ruling in the case sheds light on how far employees may go in raising hell in the workplace. An employee, Agins, "was discharged primarily for his use of obscenities in an outburst during an organized protest  of Starbucks's restrictive button policy." This outburst took place in front of customers and employees. Agins (who was identified as a union activist in Starbucks' internal memoranda) ran into a manager who was a customer that day. The supervisor, Yablon, had serious issues with Agins."Yablon engaged Agins in a conversation about his union pin and whether Starbucks employees really needed a union. At some point, Agins spoke of Yablon's alleged insult to his father, and the conversation became heated. Both men used hand gestures, spoke loudly, and used obscenities. Agins admitted that he told Yablon, 'You can go fuck yourself, if you want to fuck me up, go ahead, I'm here.' Agins's fellow supporters then intervened to stop the argument, and he withdrew with them to a table while James approached Yablon and told him to 'leave it alone.' Yablon then left the store."

What I love about this case is that the administrative law judge actually held that Agins was fired for union-related activity because his profane outburst arose from a "discussion that was primarily about the union." The Second Circuit is not so sure. Starbucks has a legitimate interest in preventing profane outbursts in the workplace in the presence of customers. On the other hand, the case law governing outbursts like this in the workplace is not clear. Here's the issue:

Whether an employee's outburst in which obscenities are used in the presence of customers loses otherwise available protection if the employee is off duty although on the employer's premises.

On the one hand, it is arguable that section 7 never protects an employee who uses obscenities in the presence of customers, even when discussing employment issues, whether or not the employee is present as an identifiable employee or only as a customer. On the other hand, it is also arguable that section 7 withdraws protection from an employee discussing such issues and using obscenities only when the employee is identifiable by customers as an employee, e.g., in a work uniform. Although an employer has the undoubted right to remove from a store any person, including an employee, who causes a disturbance likely to risk loss of customers, the discharge of an employee has more serious and long-lasting consequences for the employee than a demand that a customer or an employee leave the premises. 

What I really love about this case is that the employee who used the F-word in an outburst toward another Starbucks manager in front of customers might actually be allowed to do so. The Second Circuit sets out the ground rules for a case like this, outlined above. The NLRB has to reconsider its ruling in light of these rules.

New York's kosher labeling law is kosher

The State of New York passed a law in 2004 that imposes requirements on sellers and manufacturers that market their food products as "kosher." One requirement is that kosher foods be labeled as such. Also, the guy who certifies the food as kosher has to be identified to state authorities. The law does not define "kosher" or authorize state inspectors to determine the kosher nature of the products. A business in Commack, Long Island, challenges the constitutionality of this law. The Court of Appeals says it's constitutional.

The case is Commack Self-Service Kosher Meats v. Hooker, decided on May 10. The plaintiffs challenge this law under the Establishment Clause, which requires that laws have a secular purpose and not advance any particular religion. Laws also cannot allow the government to entangle itself with religion. This law has a secular purpose; many non-Jews eat kosher foods these days, the Court of Appeals (Walker, Lynch and Droney) says. "Thus, the legislative history is clear that the labeling law has the secular purpose of protecting against fraud by informing a consumer that a particular seller believes a product is kosher."

While the plaintiffs also argue that the Kosher Act entangles the state with religion because it requires kosher goods to have a kosher label, the Second Circuit disagrees. The law does not define what is kosher. "The label simply indicates to the consumers that the seller or producer, and its certifier, believe the food to be kosher under their own standards. ... Thus, the Kosher Act does not entangle the State with religion because it does not require the State to enforce laws based on religious doctrine or to inquire into the religious content or religious nature of the products sold." For mostly these reasons, the law also does not advance religion. It "requires a seller of kosher products to label those products held out as kosher." The government is not taking sides on which religious requirements are appropriate.

For similar reasons, the Court also rejects the plaintiffs' Free Exercise Clause challenge. The law is neutral and applies to everyone, so any infringement on religious practices is legal under Supreme Court precedent. The law "applies to any seller who offers products for sale as 'kosher' regardless of the seller's religious belief or affiliation." While a law can violate the Free Exercise Clause if the legislature intended to burden a particular religious practice, that did not happen here. The statute does not allow state inspectors to verify if in fact the good is kosher, and the producer can classify the food as kosher based on his own standards. Anyone can designate the food as kosher. According to the Court of Appeals, all the state wants to do is prevent "fraud in the kosher marker by identifying, for the benefit of consumers, which products are being marketed as kosher, and the basis they are asserted to be so, in order to enable consumers to make their own decisions as to whether to accept teh assertion according to their own religious or non-religious standards. The law is kosher under the Constitution.

Videotape kills off disputed excessive force claim

There was no YouTube when the Constitution was created. And there were no cell phones when the federal courts first recognized a cause of action for excessive force in violation of the Fourth Amendment. The courts change with the times, though, which is why the Supreme Court in 2007 said that trial courts may credit video evidence on motions for summary judgment in excessive force claims.

The case is Kalfus v. City of New York, a summary order issued on April 13. In the old days, excessive force cases could easily go to trial on the say-so of the plaintiff if he testified that the officers beat the hell out of him, no matter what the police officers said. But if a video camera or even someone's cell phone happens to catch the dispute, then the court can see what happened and resolve the case on summary judgment.

In this case, Kalfus was a freelance photographer for the New York Post who hung around New York Presbyterian Hospital hoping to photograph Joe Torre, who was visiting his brother Frank Torre, who was getting a kidney transplant. Frank and Joe Torre both played major league baseball. Anyway, a hospital security offer told Kalfus to leave because he was on private property.

The district court summarized the competing stories in a way that would have probably resulted in a trial based on disputed factual issues: "The parties have differing perspectives regarding what occurred during the escort of Plaintiff to the SCC. The video, from a variety of security cameras, depicts the Officers behind Kalfus leading him to the SCC. The Officers contend that Plaintiff was insubordinate, and that by struggling and resisting, Plaintiff made the walk unnecessarily difficult. Plaintiff, on the other hand, asserts that he never resisted; and on the contrary, that he feared for his safety because he did not know where he was being led and because the officers were pulling him in different directions. The audio contains what might be characterized as "shrieks" and "screams" from Kalfus while being escorted to the SCC."


Here's how the Court of Appeals (Sack, Droney and Raggi) sees it:

Kalfus was again told by hospital patrolmen to leave hospital property. He refused, repeatedly making snide and sarcastic statements, and threatening legal action. The patrolmen then sought to arrest Kalfus for trespass, and to restrain him by handcuffing his hands behind his back. Kalfus attempted to evade handcuffing. He did not attempt to flee.

The patrolmen pushed Kalfus on to his stomach in order to handcuff him, which they then did by pulling his arms up behind his back. They then stood him up and walked him across the street to another building, where the main hospital security office was located. Eventually Kalfus was handed over to the New York City police.

The Court of Appeals affirms summary judgment. A security video caught the entire encounter. At page 6 of the ruling, the Court of Appeals links to the video, embedded on its website for us to see for ourselves. I don't think the Second Circuit has done this before. The confrontation starts at around 2:30. It looks like the police have to take Kalfus down twice. The Court says, "[t]he video further shows that to effect the arrest, officers turned Kalfus onto his stomach, pulled his arms behind his back, placed handcuffs on him, and lifted him onto his feet by pulling on his upper arms, sweatshirt, and waist. No reasonable factfinder could conclude that such actions were excessive in the circumstances." Take a look at the video.

For Section 1983 junkies only

The Supreme Court the other day held that an anti-war plaintiff cannot sue Secret Service agents under the First Amendment for a retaliatory arrest if there was probable cause to arrest him on something else, harassment. The case arose when the plaintiff made a smart-mouth comment to then-Vice President Cheney about the Iraq war. As I wrote here, the Court did not say that the Secret Service agents did not violate the free speech clause. Instead, the Court said that the law relevant to his case was not "clearly established" at the time of the alleged speech violation for plaintiff to be able to sue the agents.

The case is Reichle v. Howards, decided on June 4. Apart from the fact that the Court rules against the free speech plaintiff, there is an interesting side note to this case for those of you who litigate Section 1983 cases. Public employees, including police officers, are entitled to qualified immunity from suit if the law was not clearly established. If the state of the law was murky at the time of the events giving rise to the case, then the defendant cannot be sued for money damages. This is because courts deem it unfair for these defendants to pay damages when the case law was in a state of flux at the time. So, while the First Amendment says what it says about the right to free speech, for the plaintiff to overcome a qualified immunity challenge, he must find a case that says that what specifically happened to him was illegal. He does not have to find a case on all fours to repel qualified immunity; he must only find cases that would make it apparent that the defendant broke the law.

In this case, the Supreme Court noted that the case arose in the Tenth Circuit, which had ruled in plaintiff's favor. The Supreme Court reviewed whether Tenth Circuit case law had clearly established that plaintiff could sue the Secret Service for a retaliatory arrest in violation of the First Amendment where there was probable cause to arrest for something else. Justice Thomas writes:

We next consider Tenth Circuit precedent. Assuming arguendo that controlling Court of Appeals' authority could be a dispositive source of clearly established law in the circumstances of this case, the Tenth Circuit's cases do not satisfy the "clearly established" standard here. 

See the "assuming arguendo" language? It piqued my interest. Most, if not all Circuit courts -- including the Second Circuit -- look to Supreme Court and Court of Appeals precedent in determining whether the law was clearly established. But the Supreme Court has never approved or disapproved of that approach. The Court has never said which body of case law governs whether the law was clearly established. In Harlow v. Fitzgerald, 457 U.S. 800, 819 n. 32 (1982), the Supremes said, "we need not define here the circumstances under which 'the state of the law' should be 'evaluated by reference to the opinions of this Court, of the Courts of Appeals, or of the local District Court.'"

The Court has never returned to this issue of which body of case law governs the "clearly established" inquiry. This is an important issue. The Supreme Court hears far fewer cases than any of the Courts of Appeal. If Supreme Court authority is the only basis to find that the law was clearly established, fewer plaintiffs might be able to recover damages. On the other hand, there are hundreds if not thousands of cases decided by each Court of Appeals on a given issue, giving plaintiffs a larger pool of cases to draw from in arguing that the law was clearly established at the time of the alleged constitutional violation. One of these days, the Supreme Court will take up that issue. For now in the Supreme Court, the law of "clearly established" law is not clearly established.

This lawsuit could've been a lot of fun ...

 ... but it won't be. Blame qualified immunity. In this case, the Supreme Court unanimously holds that an anti-war plaintiff cannot sue Secret Service agents for retaliatory arrest under the First Amendment. While the Supreme Court has never said whether you can -- or cannot -- bring a lawsuit like this, the Court says the state of the law was too murky at the time of his arrest to allow the plaintiff to sue the agents for damages.

The case is Reichle v. Howards, decided on June 4. Howards saw Vice President Dick Cheney at a public event in 2006. Of course, Secret Service were standing by. One of them heard Howards tell someone else that he was going to ask Cheney how many children he killed today, a reference to the Iraq war. The agents then monitored Howards closely. The Court writes, "when Howards approached the Vice President, he told him that his 'policies in Iraq are disgusting." Howards then touched Cheney and walked away. When the Secret Service asked Howards if he touched (or "assaulted") Cheney, Howards falsely denied doing so. Howards was arrested for harassment, but the charge was later dropped.

So can Howards sue the Secret Service under the First Amendment for retaliatory arrest? There was probable cause under the Fourth Amendment to arrest him for harassment. But free speech retaliation under the First Amendment is another animal, right? Maybe not. This is where qualified immunity comes in. Under qualified immunity, public officials cannot be sued for damages if the law was not clearly established at the time. This is because police officers cannot be expected to be legal scholars, able to predict how the courts are going to interpret certain behavior under the Constitution. What muddied the waters in this area was the Supreme Court's decision in Hartman v. Moore, 547 U.S. 250 (2006), which said that retaliatory prosecution cannot proceed under the First Amendment if the charges are supported by probable cause. While prosecution is a little different from arrest (prosecutors are immune from all suits and do not arrest the defendant, while police officers who do make arrests may be sued directly for constitutional violations), it's close enough that Secret Service officers might reasonably think that the Hartman case protected them from any First Amendment violations.This means that Howards' case dies at the alter.

What makes cases like this maddening is that the Supreme Court does not have to find that there actually was a constitutional right before deciding that the law was not clearly established. As the Supreme Court says in this case, "to be sure, we do not suggest that Hartman's rule in fact extends to arrests." If it wanted to, the Court could say that Howards' rights were violated under the First Amendment, but that the Secret Service officers had no reason to know that because the Supreme Court had never said that this conduct violated the First Amendment. Had the Court said that in this case, it would set the stage for the next such lawsuit to go forward, even if Howards' suit could not proceed. The next guy who sustains a retaliatory arrest, then, could bring a claim on the basis that the Howards case said this conduct violates the First Amendment. The Court does not do that, which means the law remains as murky as ever.

First Amendment does not protect police speech against arrest quotas

The highway is strewn with discarded Garcetti cases that failed to live up to the high standards set by the Supreme Court and Second Circuit governing public employee whistleblower retaliation cases. Here's another one.

The case is Matthews v. City of New York, a Southern District of New York case decided on April 12. Under Garcetti v. Ceballos, 547 U.S. 410 (2006), public employees may be retaliated against unless their speech relates to a matter of public concern and is not pursuant to their official job duties. The "public concern" angle is easy to prove. The "official job duties" angle is a killer. Here, the plaintiff police officer complained to his superior officers about a quota system "mandating numbers of arrests, summons, and stop-and-frisks." Matthews was given punitive job assignments and bad performance evaluations in retaliation for this speech. The jury would love this guy, but Matthews will never see a jury in this case. The district court said that his speech was pursuant to his official job duties. Case dismissed.

Two cases guide the outcome: Weintraub v. Board of Education, 593 F.3d 196 (2d Cir. 2010), and Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011). Weintraub interprets Garcetti to mean that public employee speech is unprotected if it is "part and parcel" of the plaintiff's ability to do his job. Judge Jones holds, "Matthews' complaints to his supervisors are consistent with his core duties as a police officer, to legally and ethically search, arrest, issue summonses, and -- in general -- police." Although plaintiff was not required to speak up this way, that does not save his claim under Second Circuit precedent.

This is what Garcetti gets us these days. Certainly, Matthews' speech touched on a matter of public concern. The proper functioning of a police department, particularly if the department is using quotas and questionable tactics, is a matter of public interest. But the speech too closely relates to plaintiff's everyday job duties. Under Garcetti, Matthews' case is pitched aside.

Matthews argued that his case is closer to Jackler, one of the few cases that survived a Garcetti challenge in the Second Circuit. In Jackler, the Court of Appeals said that a police officer had a case when he refused to falsify a report that implicated a sergeant in police brutality, as that speech had a civilian analogue and was therefore more like citizen speech than official duty speech. But Judge Jones interprets Jackler narrowly. In Jackler, the officer's initial report that told the truth about an act of brutality that he witnessed was official duties speech; it was his refusal to later falsify that report that had a citizen analogue and was therefore protected speech, and it "was only related to his job duties," Judge Jones says. The rule in this case is that "if a public employee is speaking 'pursuant to' his duties, there is no civilian analogue to that speech."

No deadly force jury charge in wrongful death case against the police

If you lose the trial, and you really must take up an appeal, consider challenging the trial court's jury instructions. If the jury doesn't have the right instructions, it could not have made the correct decision, right? Yes, but not this case.

The case is Terranova v. State of New York, decided on April 16. This case arises from a roadblock gone awry. The police set up the roadblock on the Sprain Brook Parkway in Westchester County because some motorcyclists were riding erratically. When three motorcyclists approached the roadblock, there was already a traffic tie-up. When a BMW in the center lane abruptly moved into another lane, it caused a chain reaction. One cyclist crashed into the vehicle. Another drove into the median. A third drove into the median to avoid an accident and jumped off his motorcycle, striking his chest on another motorcycle. He ultimately died from the chest injuries.

The case went to trial on a Fourth Amendment theory that the police had seized the cyclists without justification and had used excessive force. The lost at trial. The appeal argues that, although the trial court used the basic excessive force jury charge, it should have also instructed the jury on a "deadly force" charge that presumably would have made it easier for the plaintiffs to win. The Court of Appeals (Winter, Lynch and Carney) notes that, for a time, some courts interpreted Tennessee v. Garner, 471 U.S. 1 (1985), to mean that "the Supreme Court ... established a special rule concerning deadly force, which could require a separate jury instruction in which police conduct created a substantial risk of death or serious bodily injury." However, in Scott v. Harris, 550 U.S. 372 (2007), the Court rejected that interpretation.

So, the Second Circuit provides the operative rule: "absent evidence of the use of force highly likely to have deadly effects ..., a jury instruction regarding justifications for the use of deadly force is inappropriate, and the usual instructions regarding the use of excessive force are adequate." As this case involves a mere traffic stop and was not intended to seriously injure suspects, it doesn't apply here. No new trial for the plaintiffs.