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NLRB as "Big Brother": Orders Reinstatement of Employee of Non-Union Business Despite Profane Outburst

Labor and Employment Alert | June 30, 2014
By: John K. Baker and Ashley L. Park

Continuing a trend that it started years ago, the National Labor Relations Board  recently expanded its reach into non-union employment matters by ruling  that an employee’s profanity-laden outburst was protected activity under the National Labor Relations Act.

In Plaza Auto Center, Inc., Nick Aguirre was a car salesman at the Plaza Auto Center, a non-union car dealership.  During his brief tenure at Plaza Auto, Aguirre frequently spoke with other employees and managers about company breaks, restrooms, and pay policies.  At one point, management met with him to discuss his frequent complaints that they felt “would negatively affect the sales force.”  During the meeting, the managers told Aguirre that he had to follow Plaza Auto’s policies and procedures and that he should not be complaining about pay. They further said that if he did not trust the company, he did not have to work there.  Aguirre lost his temper and shouted at the owner, calling him a “f***ing crook” and an “a**hole.”  He then told the owner that if he was fired, the owner would regret it and would “get what was coming to him.”

Aguirre was fired and soon after filed an unfair labor practice charge against Plaza Auto alleging that his statements and actions were protected activity under the Act.  Plaza Auto’s owner testified that he feared for his own safety based on Aguirre’s threat.  Notwithstanding the testimony, the Board determined that Aguirre’s conduct was not threatening, menacing, physically aggressive, or belligerent.  It found that the conduct and statements were not threats of physical harm. Instead, the Board held that Aguirre threatened only legal consequences, not physical violence.

The  Board next had to determine whether Aguirre’s outburst—even the profanity­—was protected conduct under the Act.  In holding that the conduct was protected, the Board focused significantly on the subject of the outburst (wages and policies) and its location (in a manager’s office, behind closed doors and away from other employees).  Also relevant was testimony regarding the owner’s invitation to quit if Aguirre did not trust the company.  The Board found that this provocation was an implied threat of discharge.

Employers should take heed of the key points articulated in Plaza Auto: first, the Board views otherwise clearly insubordinate behavior as protected concerted activity depending upon the basis for such behavior, such as working conditions or pay, and second, a non-union employer with no collective bargaining agreement can be summoned to the Board for its review of the employer’s personnel practices. 

Because an appeal of this decision is likely, we will provide updates on further developments on this issue.  Please contact John K. Baker (610.782.4913, bakerj@whiteandwilliams.com)  or Ashley L. Park (610.782.4903, parka@whiteandwilliams.com), or any other member of our Labor and Employment Group for further assistance. 

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
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