To the NLRB: What the #%&*?

Profane Outburst Directed at Boss Deemed Protected Activity

May an employee not represented by a union be fired for complaining to the boss about pay and working conditions? Not surprisingly the answer is "NO."

May an employee not represented by a union be fired for calling his boss a "F%&*ing Mother F%&*ing" and a "F%&*ing crook" and an "a—hole" while making his complaint? According to a recent decision by the National Labor Relations Board (NLRB), the answer to this question is also "NO."

There are many lessons, some old, some new, to be learned from the August 16, 2010, Plaza Auto Center and Nick Aguirre NLRB decision.

What Happened?

The employee involved in this case began complaining about working conditions (bathroom breaks) on his first day of employment, and shortly thereafter began complaining about pay practices. The employee complained with, and on behalf of, other employees. The employer became annoyed with the employee and the "negative attitude" conveyed by the continual complaints.

After less than three months of employment, a meeting was held with the employee. In addition to the employee, the owner and two top managers attended the meeting which was held in the owner's office. The owner and managers commented on the employee's negative attitude, and said they were unhappy with his constant complaining. The employee explained why he had been complaining. Eventually, the owner told the employee that if he was not happy with the pay and working conditions "he could quit."

The employee reacted to that statement by standing up abruptly, aggressively pushing his chair back against the wall, and yelling that the owner was a "F%&*ing Mother F%&*ing" and a "F%&*ing crook" and an "a—hole." At the conclusion of the outburst, the owner fired the employee.

The Decisions

The employee filed an unfair labor practice charge alleging he had been fired for engaging in protected concerted activity in violation of the National Labor Relations Act (Act). A trial was held and the employee, owner and two managers testified. The judge, who heard the testimony and observed all the witnesses, decided that the employee had been engaged in protected activity by complaining about pay and working conditions, but that he had gone too far because he had "repeatedly reviled [the owner] in obscene and personally denigrating terms accompanied by menacing conduct and language." The judge found the employee's behavior was so egregious as to forfeit the protection of the Act.

In her decision, the judge stated specifically that she had evaluated the testimony and observed the demeanor of all the witnesses and decided that the employer's witnesses were more credible, specifically about the sequence of events at the meeting and the nature of the employee's outburst, finding that it was menacing.

The judge's decision was appealed to the NLRB. A three person panel of the NLRB reviewed the judge's decision and, by a 2-1 margin, reversed the judge's decision. The majority disagreed with the judge's determination that the employee's behavior had been menacing and so egregious as to lose the protection of the Act. Accordingly, the NLRB ordered the employer to reinstate the employee and pay him for any loss of earnings and benefits he had suffered from the date of his termination to the date of his reinstatement.

Lessons

What can employers learn from this case?

First, the case reminds us that, even in the absence of a union, the Act protects employees who challenge an employer's pay practices and working conditions. To the surprise of many non-unionized employers, this has always been the case.

Additionally, it reminds us that employees are permitted some leeway for "impulsive behavior" in complaining about pay and working conditions. While it has long been the case that the use of insulting profanity alone is not always so egregious that it forfeits the protection the Act, most employers would agree with the judge in this case that the employee's behavior was so outrageous as to be unprotected.

More ominously, the way this case was decided shows that the business community's fears about the "new NLRB" may be justified. That is because the NLRB took the unusual step of re-weighing the evidence and overruling the trial judge's determinations of credibility. For decades it has been virtually automatic for the NLRB to defer to a judge's determinations of credibility and the conclusions drawn from the testimony deemed credible. Here, the NLRB put a new burden on judges to set forth in specific detail the reasons why they deem some witnesses more credible than others. The NLRB even stated that the employer had an obligation to present evidence concerning a witness' tone and gestures in order to establish the credibility of that witness. Cynics might conclude that this portends a departure from the historic decision-making paradigm used by the NLRB with respect to credibility determinations. If so, this is ominous indeed.

It's a complex world--be advised.

Michael Boldt is a partner at Ice Miller LLP. His primary area of practice is labor law on the management side, including responding to union organizational drives, collective bargaining, arbitration, employee discipline, construction labor law, and equal employment opportunity law.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.