Gone are the days when an employer can fire without impunity an employee who unleashes a barrage of profanity against a supervisor. In Plaza Auto Center, Inc. and Nick Aguirre, 360 NLRB No. 117 (2014), on remand from the Ninth Circuit, the NLRB held for the second time that an employer violated the National Labor Relations Act by terminating an employee who engaged in a profane and insubordinate outburst. The Board required the employer to reinstate the employee with back pay and benefits.
In Plaza Auto Center, the employee discussed the company’s various policies including compensation practices with other employees. The employee complained to a manager about pay practices which led to a closed-door meeting between the owner and the employee. During the meeting, the owner told the employee he needed to follow the company policies and procedures, he should stop complaining about his pay, and he did not need to work for the employer if he did not trust them. The employee’s response included yelling at the owner, calling him a “f**king mother f**ker,” a “f**king crook,” and an “a**hole.” The employee continued his tirade telling the owner he “was stupid, nobody liked him, and everyone talked about him behind his back.” The employee also stood in the small office, pushed his chair aside, and warned the owner that if the owner fired him, the owner would regret it. The owner did not intend to fire the employee going into the meeting, but in light of the inappropriate language during the meeting, the owner changed his mind.
The Board initially found the employee’s conduct was not egregious enough to lose protection of the NLRA, under the following factors from 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 Board concluded that all four Atlantic Steel factors weighed in favor of protection, therefore finding the employer violated the Act by firing the employee. On appeal, the Ninth Circuit remanded the case because it found the Board erred in its assessment that the nature of the outburst weighed in favor of protection. On remand, although the Board agreed with the Ninth Circuit’s finding, the Board still concluded that the other three Atlantic Steel factors weighed in the employee’s favor, because: (1) the outburst occurred in a closed-door meeting in a manager’s office away from the workplace; (2) the discussion concerned the employee’s protected conduct; and (3) the outburst was provoked because it would not have occurred but for the employer’s unfair labor practice of inviting the employee to quit if he did not like the employer’s policies.
Additionally, despite the employee’s outrageous outburst, the Board concluded that the employee did not engage in menacing, physically aggressive, or belligerent conduct, because he made no specific threats of physical harm, had no history of committing or threatening violent acts during his employment, and he did not hit, touch, or attempt to hit or touch the owner. In doing so, the Board applied an objective standard and disregarded the owner’s testimony that he feared for his personal safety and for the safety of other employees. Instead, the Board concluded that the employee’s “you will regret it” statement was a threat of legal consequences and not of physical harm.
As the dissenting opinion in Plaza Auto Center noted, the Board’s standard permits employees “to curse, denigrate, and defy their managers with impunity during the course of otherwise protected activity, provided they do so in front of a relatively small audience, can point to some provocation, and do not make overt physical threats.” Employers should proceed with caution before issuing discipline and determine if the outrageous behavior qualifies for protection under the NLRA.
G. Mark Jodon, the office managing shareholder of Littler Mendelson’s Houston office, is board-certified in labor and employment law by the Texas Board of Legal Specialization. Mark frequently defends employers against unfair labor practice charges before the NLRB. He can be reached at (713) 652-4739 and firstname.lastname@example.org.