NLRB Rules that Cursing Out The Boss Is Protected Activity

In Business Law, General by Coolidge Wall

Who knew an employee could dress down the owner of the company with profanity (while angrily pushing aside a chair, no less) and get away with it? The National Labor Relations Board – that’s who! Last week, on remand from the Ninth Circuit, the NLRB in Plaza Auto Center, Inc., 360 NLRB No. 117 (2014), again found that an employer violated the National Labor Relations Act by terminating an employee for a tirade during which the employee cursed at the owner, called him profanity-laced names, and, within the confines of a small enclosed office, pushed a chair aside to underscore his point.

From the beginning of his short stint as a car salesman for Plaza Auto, Nick Aguirre complained to various co-workers and managers about lack of breaks, commission-only pay, and other working conditions. Each time he complained he was told that if he did not like it there he was free to quit.

On the day he was terminated, Mr. Aguirre had been called into a closed door meeting with the owner, Mr. Plaza, and a supervisor. Mr. Plaza indicated his displeasure with Mr. Aguirre’s negativity and grumblings and reminded him he was free to resign at any time. At that point, Aguirre lost his temper and, in a raised voice, started berating Plaza, calling him a “f**ing mother f**er,” a “f**ing crook,” and an “a**hole.” Aguirre also told Plaza that he was stupid, nobody liked him, and everyone talked about him behind his back. During the outburst, Aguirre stood up in the small office, pushed his chair aside, and told Plaza that if Plaza fired him, Plaza would regret it. Plaza promptly discharged Mr. Aguirre.

The NLRB ruled that Plaza Auto violated section 8(a)(1) of the NLRA (which provides the right of employees to engage in concerted activity) in two ways. First, it was a violation of section 8(a)(1) for management to respond to Aguirre’s complaints about compensation and other working conditions by simply telling him to find a job elsewhere. Second, it was also a violation of that section to fire Aguirre for his outburst which had been provoked by the lack of management response to his original complaints about working conditions. The NLRB found that Mr. Plaza could not lawfully fire Mr. Aguirre due to his tirade because Mr. Aguirre did not physically threaten or intimidate Mr. Plaza. Therefore, according to the NLRB, Mr. Aguirre did not lose the Act’s protections when complaining about his working conditions despite his outburst.

In assessing whether an employee’s behavior is so egregious to lose the protection of the Act, the Board considers the four factors enunciated in Atlantic Steel Co., 245 NLRB 814 (1979): (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was in any way provoked by the employer’s unfair labor practices.

The NLRB found that both the place – the manager’s office – and subject matter – working conditions – of discussions had been proper, and that the owner’s unfair labor practice of responding to his complaints by telling Mr. Aguirre to find a job elsewhere had provoked his tirade. Moreover, the tirade was a spontaneous reaction to the company’s unlawful provocations by an employee who had never before been insubordinate or belligerent.

The NLRB cast aside the prior finding by its own administrative law judge that Mr. Aguirre’s conduct was obscene, personally degrading, and accompanied by menacing conduct and language. Instead, the NLRB, for the first time, ruled that the NLRA’s protections are not lost unless verbal abuse is accompanied by some physical conduct or at least a threat that is physical in nature. Mr. Aguirre’s pushing aside the chair or stating that the owner would “regret it” if he fired him were not enough to constitute a threat that is physical in nature in this case.

While it is true that the NLRB’s decisions are often overruled in federal courts, court appeals are costly and time consuming. Therefore, it may well serve employers to take heed of the NLRB’s philosophy and practice when it comes to chronic complainers at work. The NLRB’s General Counsel published a series of opinions in the last two years addressing employee concerted activity on social media websites such as Facebook. The overarching theme emanating from those opinions and the current NLRB decision is that employees must be given quite a bit of latitude in expressing dissatisfaction with the terms and conditions of employment. Cursing, personal attacks and even childish name calling must often be overlooked in order to avoid interfering with an employee’s right to engage in concerted activity and a resultant unfair labor practice. In short, the NLRB would have employers examine the substance of an employee’s message, not its delivery.

The NLRB does indicate that when the line between complaint and physical threat is crossed, an employee can lose the protection of the Act. This raises the next question: how will an employer know when the line has been crossed? Many employers undoubtedly would deem angrily pushing around furniture in a small enclosed office to be an act of aggression and possibly a physical threat (akin to punching a wall or throwing an object). However, the NLRB declined to deem this conduct physically threatening in Plaza Auto. In support of its reasoning on this point, the Board cited the facts that Aguirre did not try to hit Plaza or even make a fist as he rose and pushed his chair aside.

It appears certain that the NLRB will judge each employee’s outburst on an individual, case-by-case basis, and the inquiry will be very fact and circumstance sensitive. Such individualized scrutiny can, unfortunately, lead to inconsistent results. All of this is to say that employers may want to ensure that cooler – well reasoned – heads prevail when faced with a disgruntled employee griping about working conditions.