Shouting Profanities at Your Boss: Protected Concerted Conduct According to NLRB

by Faegre Baker Daniels

The National Labor Relations Board (NLRB) recently held, in a 2-1 decision, that an employee who shouted profanities at his boss did not lose the protection of the National Labor Relations Act (NLRA) and required the employer to reinstate the employee with back pay and benefits. Plaza Auto Center, Inc. and Nick Aguirre, Case 28-CA022256, May 28, 2014.

Aguirre was a car salesman at the Plaza Auto Center in Yuma, Arizona, for just under three months in 2008. During his brief period of employment, he spoke with other employees and managers about Plaza Auto Center's policies concerning breaks, restroom facilities and compensation. In the meeting which led to Aguirre's termination, Tony Plaza, the owner of the Plaza Auto Center, told Aguirre his negativity was affecting other employees. Aguirre indicated he had questions about vehicle costs, commissions and minimum wage.

Plaza told Aguirre he had to follow policies and procedures, sales employees normally did not know the dealer's cost of vehicles, and that he should not complain about pay. Plaza also told Aguirre that he didn't need to work at Plaza Auto Center if he didn't trust them. Aguirre then lost his temper, calling Plaza a "f***ing mother f***er," a "f***ing crook" and an "a**hole." Aguirre also told Plaza he "was stupid, nobody liked him, and everyone talked about him behind his back." During his angry outburst, Aguirre stood up in the small office, pushed his chair aside and threatened that if Plaza fired him, "he would regret it." Although Plaza did not intend to fire Aguirre going into this meeting, he did so after Aguirre's extremely inappropriate and threatening outburst.

Despite Aguirre's outrageous behavior and offensive language, the NLRB concluded that Aguirre did not engage in menacing, physically aggressive or belligerent conduct. In reaching its conclusion, the NLRB applied an objective standard to determine whether Aguirre's conduct was threatening. The NLRB found that Aguirre's conduct and statements were not threats of physical harm; that Aguirre had not committed or threatened to commit any violent acts during his employment; and Aguirre did not hit, touch or attempt to hit or touch Plaza. The NLRB disregarded Plaza's testimony that he feared for his personal safety and the safety of his employees due to Aguirre's conduct.

Further, the NLRB applied the factors from Atlantic Steel Co. v. Chastain (1979) case and found that even though the nature of Aguirre's outburst weighed against a finding Aguirre had engaged in protected concerted conduct, the other three factors — the place of discussion, the subject of discussion and whether the outburst was provoked by employer's unfair labor practice — weighed in Aguirre's favor.

As to the place of discussion, the fact that Aguirre's outburst occurred in a manager's office, behind closed doors and away from other employees was significant because it was less disruptive to the workplace. As to the subject of the discussion, it was a discussion of Aguirre's concerted complaints about the terms and conditions of employment, mainly compensation policies relating to salespeople. As to whether the outburst was provoked, the NLRB concluded that Aguirre's outburst would not have occurred but for Plaza's provocation which included inviting Aguirre to quit if he did not like the policies and telling Aguirre not to complain.

Plaza Auto Center demonstrates the NLRB is continuing to aggressively pursue cases in which an employer allegedly interfered with, restrained or coerced an employee for engaging in protected concerted activities. Further, even if an employee engages in egregious conduct, he or she may still be protected under the NLRA if the other circumstances of the employee's alleged protected concerted conduct weigh in the employee's favor. Union and non-union employers alike should tread carefully when disciplining and discharging employees who might be acting to address collective employee concerns.



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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