NLRB Finds Employees Outburst Against Employer to Be Protected Activity

Wednesday, June 18, 2014
The National Labor Relations Board (NLRB) recently held that an employee who shouted profanities at his boss was protected under the National Labor Relations Act (NLRA) and required the employer to reinstate the employee with back pay and benefits. Plaza Auto Center, Inc. and Nick Aguirre, Case 28-CA022256, May 28, 2014.

Aguirre was a car salesman at the Plaza Auto Center in Yuma, Arizona, for just under three months starting in August of 2008. During his employment, Aguirre spoke with other employees  about Plaza Auto Center's policies concerning breaks, restroom facilities and compensation. In the meeting which led to Aguirre's termination, Tony Plaza, the owner of the Plaza Auto Center, told Aguirre his negativity was affecting other employees. Aguirre indicated he had questions about vehicle costs, commissions and minimum wage; all of which he had discussed with the Arizona wage and hour agency.

Plaza told Aguirre he had to follow policies and procedures, sales employees normally did not know the dealer's cost of vehicles, and that he should not complain about pay. Plaza also told Aguirre that he didn't need to work at Plaza Auto Center if he didn't trust them. Aguirre then lost his temper and berated Plaza with a string of profanities.  Plaza had not intended to fire Aguirre going into this meeting, but he did so as a result of Aguirre's outburst.

Despite Aguirre's behavior and offensive language, the NLRB concluded that Aguirre did not engage in menacing, physically aggressive or belligerent conduct. In reaching its conclusion, the NLRB applied an objective standard to determine whether Aguirre's conduct was threatening. The NLRB found that Aguirre's conduct and statements were not threats of physical harm; that Aguirre had not committed or threatened to commit any violent acts during his employment; and Aguirre did not hit, touch or attempt to hit or touch Plaza. The NLRB disregarded Plaza's testimony that he feared for his personal safety and the safety of his employees due to Aguirre's conduct.

The NLRB applied the four factors from Atlantic Steel Co. v. Chastain, 245 NLRB 914 (1979) case to determine whether Aguirre's conduct was protected and found that even though the nature of Aguirre's outburst weighed against a finding Aguirre had engaged in protected concerted conduct. The Board found that the other three factors — the place of discussion, the subject of discussion and whether the outburst was provoked by employer's unfair labor practice — weighed in Aguirre's favor.

The NLRB found that the employer had violated Section 8(a)(1) by discharging Aguirre because he engaged in protected concerted activity.  It required that Aguirre be immediately reinstated to his former job, or if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights and privileges previously enjoyed. 

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