Tuesday, January 10, 2012

Calling The Boss An "F-ing Crook" -- Is This Language Protected By Law So Long As You Don't Hit Him?

Nick Aguirre took a sales job with Plaza Auto Center, a used car dealership in Yuma, Arizona.  At a tent sale held in the Sears parking lot, Nick asked where the restroom facilities were located, and where he could take a break.  A manager responded that salespeople are always on break waiting for customers. 

Nick also questioned the compensation policy.  He thought he should earn a draw against commissions.  He also complained when he sold a vehicle anticipating at least a $1,000 commission, but received only $150. 

Nick complained again when a manager indicated the cost of a repair would be taken equally from all salespersons' paychecks since no one would fess up to the accident.  The company told Nick that they had many people to choose from if he didn't like his job. 

After receiving information from an Arizona governmental agency indicating that at least a draw at minimum wage must be provided to salespersons, Nick confronted management.  They told him he could work elsewhere if he wanted to work for minimum wage.  Then a meeting was held and the managers told Nick he was too negative and asked too many questions.  They told him he didn't need to work at Plaza if he didn't like it.  That tweaked Nick and he raised his voice calling the boss a "fucking mother fucking," a "fucking crook" and an "asshole."  He told the boss he was stupid, that no one liked him, and that everyone gossiped about him.  He then stood up, pushed his chair aside and told Plaza that it would regret it if it fired him.  So Plaza fired him. 

Nick challenged the termination under the National Labor Relations Act ("NLRA").  He claims that he was engaged in concerted activity and that Plaza's action in firing him constituted an unfair labor practice. 

The matter was heard by an ALJ.  He held that while Nick was engaged in concerted activity, his outburst, complete with obscenities and personal attacks, resulted in a loss of protection under the NLRA.  The National Labor Relations Board ("Board") concluded that Nick's conduct was not so severe that Nick lost protection under the NLRA.  The case was appealed to the Ninth Circuit Court of Appeals. 

The issue in the case was whether Nick's outburst was so bad -- opprobrious -- that Nick lost the protection otherwise afforded him under the NLRA to engage in concerted activities regarding workplace conditions.  The court referred to the test developed in Atlantic Steel Co., 245 N.L.R.B. 814 (1979) as a framework in analyzing this matter.  Under Atlantic Steel, courts look at four factors to determine if a worker loses the protection of the NLRA because his/her acts are indefensible or abusive.  The 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 provoked by the employer's unfair labor practice. 

According to the court, the fact that the meeting with Nick was held behind closed doors, and did not disrupt operations, weighed in favor of protection.  Moreover, the court concluded that Nick's outburst could not be separated from his complaints regarding workplace conditions (i.e., rest periods, restroom facilities, calculation of commissions, etc.).  And Plaza engaged in unfair labor practices by threatening to fire Nick if he did not stop complaining.  Thus three of the four factors weighed in favor of protection in spite of Nick's outburst. 

The critical factor, however, was the nature of the outburst.  The Board implied that absent physical contact, or the threat of physical violence, an outburst does not result in the loss of protection.  The court disagreed with the Board's position, noting prior cases that hold offensie and personally denigrating remarks alone can result in the loss of protection, whether or not physical violence is present.  Moreover, the court noted that the Board had adopted the ALJ's findings of fact and credibility.  These findings included a conclusion that Nick's behavior was belligerent, menacing and physically aggressive. 

In the end, the court remanded the case to the Board to either adopt all of the ALJ's findings, or to explain why it is not adopted the findings. 

What do we learn from this?  First, an employer shouldn't be a jerk.  Respond to an employee's legitimate concerns about pay, restroom facilities and the ability to take breaks.  Second, think twice before disciplining an employee for an emotional outburst.  If physical violence or a threat of violence is part of the outburst, there appears to be no question that an employee will lose the protection of the NLRA.  However, if physical violence is not part of the outburst, the nature of the outburst must be carefully weighed against the other three factors of the Atlantic Steel case.  In this particular case, employers can see that the Board does not consider the language quoted above (4th paragraph) so opprobrious as to negate protection of the NLRA. 

In my opinion, had the employer acted responsibly in responding to Nick's valid concerns, the matter would not have escalated to a confrontation.  I am not excusing Nick's behavior.  Frankly, I feel that such behavior, even if part of a larger discussion about working conditions, should not be condoned or protected. 

However, at times employees can feel as though they have nowhere else to turn and lash out as their only perceived means of finding assistance.  Providing employees with a viable outlet to communicate will foster goodwill, a fair means of airing grievances, and also a postive method of resolving differences. 

Bottom line:  My advice is to avoid the claim, adopt good HR practices that avoid confrontations.  If it does happen, then given the context, the behavior would be more likely sufficient to lose the protection of the NLRA and discipline would be appropriate. 


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