In Plaza Auto Center, Inc., a case decided May 28, 2014, the National Labor Relations Board (NLRB) found 2-1 that that an employee who shouted profanities and personally attacked his boss did not lose the protections of the National Labor Relations Act (NLRA).
The employee was a car salesperson at a car dealership, Plaza Auto Center, Inc. During his three month tenure at Plaza in 2008, the employee repeatedly questioned Plaza’s methods for giving employees breaks, and establishing vehicle costs, calculating commissions and paying its salespersons minimum wage. Finally, the employee was called into a one-on-one meeting with his sales managers. During this meeting, the employee was told that he needed to follow the employer’s policies and procedures, that he should not be complaining about his pay, and was told twice that he did not need to work for the employer if he did not trust them. At that point, the employee lost his temper and in a raised voice and launched at tirade against his manager, calling him a “f—— mother f——,” a “f—— crook,” and an “a–hole.” The employee also told his manager that he was stupid, nobody liked him, and everyone talked about him behind his back. During the outburst, the employee stood up in the small office, pushed his chair aside, and told his manager that if he fired him, the Company would regret it. The manager then fired the employee.
In the initial decision, the administrative law judge found that the employee’s outburst was “belligerent,” “menacing,” and “at least physically aggressive” and therefore, not entitled to statutory protection under the NLRA as protected concerted activity. The case went to the NLRB for the first time in 2010, wherein the Board concluded in a 2-1 decision that the employee’s conduct was not so severe as to cause him to lose his statutory protections. In reaching that conclusion, the Board applied the four-part test in Atlantic Steel Co., to determine whether the employee’s conduct was protected. Those factors are (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. Plaza filed a petition for review with the Ninth Circuit. The Ninth Circuit Court of Appeals agreed with the NLRB on three of the Atlantic Steel Co. factors, but remanded the case back to the Board because it found that the Board had erred in its initial assessment that the nature-of-the-outburst factor weighed in favor of protection.
But, on remand, two Board members again rejected the ALJ’s finding that the employee’s behavior was “belligerent,” “menacing,” and “at least physically aggressive if not menacing,” but agreed with the Ninth Circuit’s finding that the nature-of-the-outburst factor weighed against granting protection. Notwithstanding, the Board still found that the other three factors weighed in favor of the employee retaining protection of the Act.
The Board concluded the employee’s conduct was entitled to protection because the outburst occurred in a closed-door meeting in a manager’s office away from the workplace, thus minimizing any possibility that these remarks were witnessed by other employees. Furthermore, the fact that the employee’s conduct was “provoked” by the employer’s unfair labor practice of inviting the employee to quit if he did not like the employer’s policies, weighed “heavily in favor of protection”. The Board ordered Plaza to reinstate the employee with backpay and benefits.
Plaza Auto Center is only the latest example of the NLRB’s aggressive efforts to target employers who it contends have interfered with, restrained or coerced an employee for engaging in protected concerted activities. This case serves as a reminder for union and non-union employers that even if an employee engages in egregious conduct or uses profanity, he or she may still be protected under the NLRA if other circumstances of the employee’s alleged protected concerted conduct weigh in the employee’s favor.