NLRB Says Cussing Out Boss is OK, So What’s a Business to Do?

by Cranfill Sumner & Hartzog LLP

[Ed. Note:  We know we’re a little late to the party with this one, but we just read the decision and had to share it for anyone else who has been in a news blackout for the past couple weeks.]

You’d think that an employee who screamed at his boss and called him a “f***king crook,” an “a**hole,” “stupid,” and more could lawfully be fired without a second thought.  You’d be wrong.

Nick Aguirre worked at a non-union car dealership in Arizona.  He had a few concerns about wages, commissions, and break times, so he met with two managers and the dealership’s owner to air his complaints.  At one point during their meeting, the owner pointed out that Aguirre could always find work elsewhere if he didn’t like things at the dealership.  That didn’t sit too well with Aguirre, so he unleashed a barrage of obscenities, directing all manner of insults and names at his boss.  To no one’s surprise, he was fired.

The surprising part is what happened next.  A three-member panel of the National Labor Relations Board ruled by a 2-1 vote that Aguirre’s termination was unlawful because he was engaged in “protected” activity, and that the company had to reinstate him with full backpay.  The panel’s reasoning was that the meeting was about wages, hours, and working conditions, which are subjects that employees are entitled to discuss with management.  The panel majority also said that Aguirre’s outburst was “provoked” by the owner’s statement that he could leave if he didn’t like working there and, in any event, Aguirre’s blow-up did not include any threats or physical harm to anyone.

The employer appealed to a federal court of appeals, which ultimately remanded the case back to the NLRB to reconsider what appeared to be an unreasonable decision.  The NLRB did reconsider, and this time two different Obama appointees came to the same conclusion that the employee’s outburst of profanity toward his boss was actually protected activity!

So does this mean that employees can’t be discharged for cussing out their boss or engaging in other obscene conduct?  No, but it does mean that employers should expect that even the most seemingly clear cut disciplinary decisions can hold hidden traps for the unwary.  A few takeaways come to mind:

1.  The current NLRB is entirely Obama-appointed and is extremely pro-employee … even non-union employees, such as Aguirre, will get the Board’s protection more often than not.

2.  The NLRB considers all employee complaints about wages to be “protected, concerted” complaints, even when the employee is only complaining about his/her own wages.

3.  The NLRB will almost always allow employees to get away with a certain amount of “animal exuberance” – that’s what some decisions call misconduct such as Aguirre’s – when they are engaged in protected, concerted activity.

4.  An employer is still able to discharge a worker who engages in obscene and/or insubordinate conduct in the workplace.  However, businesses should pay particular attention to the circumstances in which the misconduct occurs, and they may want to consult with counsel before taking further action if the conduct occurs during protected activity.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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