The New Normal: Employee's Profane, Insubordinate Outburst Is Protected Activity According to the NLRB

On remand from the Ninth Circuit, the National Labor Relations Board held for the second time that an employer violated the National Labor Relations Act  by terminating an employee who engaged in a profane and insubordinate outburst.  The Board required the employer to reinstate the employee with back pay and benefits.  Plaza Auto Center, Inc. and Nick Aguirre, 360 NLRB No. 117 (May 28, 2014).  

The employee worked as a car salesman in 2008.  While employed there, he discussed the employer’s policies on breaks, restroom facilities, and compensation practices with other employees.  After the employee complained to a sales manager about the employer’s calculation of sales commissions, the owner called him into a meeting in the sales manager’s office.  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 that he did not need to work for the employer if he did not trust them.  The employee then lost his temper, yelling at the owner and calling him a “f**king mother f**ker,” a “f**king crook,” and an “a**hole.”  He also told the owner he “was stupid, nobody liked him, and everyone talked about him behind his back.”  The employee also stood in the small office, pushed his chair aside, and warned the owner that if the owner fired him, the owner would regret it.  The business owner did not intend to fire the employee at this meeting, but he did so following the employee’s outburst. 

The Board initially concluded the employee’s conduct was not egregious enough to lose protection of the Act.  See Plaza Auto Center, Inc., 355 NLRB 493 (2010).  In reaching that decision, the Board considered the following factors from Atlantic Steel Co., 245 NLRB 814 (1979): (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.  The Board concluded that all four Atlantic Steel factors weighed in favor of protection, and therefore, the employer violated the Act by firing the employee. 

On appeal, the Ninth Circuit agreed with the Board on three of the Atlantic Steel factors but remanded the case because it found that the Board erred in its assessment that the nature of the outburst weighed in favor of protection.  On remand, in a 2-1 decision (Pearce, Hirozawa), the Board agreed with the Ninth Circuit’s finding that the nature-of-the-outburst factor weighed against protection.  Even so, the Board concluded that the other three Atlantic Steel factors weighed in the employee’s favor, because: (1) the outburst occurred in a closed-door meeting in a manager’s office away from the workplace; (2) the discussion concerned the employee’s protected conduct; and (3) the outburst was provoked because it would not have occurred but for the employer’s unfair labor practice of inviting the employee to quit if he did not like the employer’s policies. 

Additionally, despite the employee’s outrageous conduct, the Board concluded that the employee did not engage in menacing, physically aggressive, or belligerent conduct, because he made no specific threats of physical harm, had no history of committing or threatening violent acts during his employment, and he did not hit, touch, or attempt to hit or touch the owner.  In doing so, the Board applied an objective standard and disregarded the owner’s testimony that he feared for his personal safety and for the safety of other employees.  Instead, the Board concluded that the employee’s “you will regret it” statement was a threat of legal consequences and not of physical harm.  

Member Johnson’s dissent noted that under the standard articulated by the Board, employees “will be permitted to curse, denigrate, and defy their managers with impunity during the course of otherwise protected activity, provided they do so in front of a relatively small audience, can point to some provocation, and do not make overt physical threats.”  Employers—both union and non-union—should proceed with caution when disciplining employees who might be engaged in concerted activity, as this Board decision comes closer to issuing employees a carte blanche in such circumstances.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.