Is the National Labor Relations Board Licensing Vulgar Employee Misconduct?

            Last week the National Labor Relations Board ruled that an employee's angry, vulgar rant toward his manager was "protected activity" and thus not a legal basis to terminate an employee. Notably, the case arose in a non-union context. The facts are a lesson for all employers.

            In a 2-1 decision, the NLRB ruled that an auto dealer, Plaza Auto Center, unlawfully fired salesperson Nick Aguirre for complaining about his compensation and working conditions. The company argued that the employee lost the protections of the law when he angrily directed several f-bombs at his employer during an employee meeting.

            Background. During Aguirre's brief, two-month tenure, he often complained to other employees and managers about the employer's policies concerning breaks, restroom facilities, and compensation, including his belief that Plaza was stealing money from him with his commission calculations. On what became his last day, Aguirre was called into the owner's office to meet with Plaza and two of his sales managers. Plaza had not intended to fire Aguirre, but wanted to discuss his "talking a lot of negative stuff" and asking too many questions. During their meeting, Plaza twice told Aguirre that if he did not trust him, he need not work there. According to the Board, Aguirre then lost his temper and loudly berated Plaza, calling him a "f***ing mother f***ing" [sic], a "f***ing crook," an "a**hole," "stupid," and other things. During the outburst, Aguirre stood up in the small office, pushed his chair aside, and told Plaza that if he fired him, Plaza would regret it. Plaza then fired Aguirre.

            The employer did not challenge that Aguirre had been exercising his right under the federal labor law to protest wages and working conditions. Nor did the employer question that it is a violation of federal law for a manager or supervisor to respond to an employee's protected complaints by telling him he should get a job elsewhere, as Plaza did here. Rather, the employer argued that Aguirre lost the protection of the law with his vulgar outburst, along with what the administrative law judge found to be menacing or at least physically aggressive behavior in Plaza's small office.

            The Board considers four factors to determine whether an employee has lost the protection of the law with such behavior: (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 practice.

            The Ruling.    The majority took the unusual step of rejecting the administrative law judge's factual finding that Aguirre engaged in menacing or at least physically aggressive behavior. Nonetheless, acknowledging that Aguirre's vulgarities alone tended to weigh against protection, the majority tipped the scale in Aguirre's favor by emphasizing the other factors. Specifically, NLRB Chairman Pearce and Member Hirozawa pointed to the fact that Aguirre's outburst occurred in the privacy of the owner's office, and stressed that Plaza "engaged in extremely provocative acts" of twice suggesting that Aguirre need not work for him if he didn't like Plaza's policies. The majority determined that Aguirre's outburst would not have occurred absent Plaza's unlawful statements, which were "an implied threat of discharge" if Aguirre continued protesting policies.

            Dissenting Member Johnson criticized the majority's rebalancing of the factors to find Aguirre's outburst to be protected. He accused the majority of being "out of touch" in failing to recognize that today's workplace is not like "Scoresese's 'Wolf of Wall Street' [which] set the all-time U.S. cinematic f-word record." Johnson viewed the majority's decision as contrary to the Board's important statutory policy of encouraging "industrial peace" and labor relations stability.

            What Happens Next? The employer may appeal the Board's decision to the U.S. Court of Appeals. In the meantime, it is the law for most private sector employers. This means that employers (and the supervisors) need to be mindful of what types of behavior are considered "protected" so the company does not unwittingly commit an unfair labor practice, like Plaza Auto did in this case. If employees are complaining about working conditions, this should be a tip off that the behavior may indeed fall under the protections of one or more of the many labor laws. If so, management's reaction then and in the future may form the basis for a valid unfair labor practice charge.

            The law in this area is very complex and nuanced. The only way to avoid this type if liability is if supervisors are trained to recognize legally protected behavior.