Single Blog Title

This is a single blog caption

The AR Group

?F Bombs? as Protected Speech?

By Victoria Aguilar

The National Labor Relations Board (?NLRB?) recently concluded that an employee who made concerted complaints about compensation did not lose the protection of the National Labor Relations Act (?NLRA?) despite the fact that the employee dropped ?f-bombs? in the face of the owner of the company. In Plaza Auto Center, Inc., 360 NLRB No. 117 (May 28, 2014), a case on remand from the Ninth Circuit Court of Appeals, the Board determined that the employee?s questioning of the company?s policies regarding breaks and compensation constituted protected concerted activity under Section 7 of the NLRA.? Accordingly, the employer?s termination of the employee violated the employee?s rights.

Background:

Plaza Auto Center (?Plaza? or ?Dealership?) is a non-union used car Dealership. One of Plaza?s used car sales persons started questioning other employees and managers about the company?s break and compensation policies, shortly after beginning employment with the dealership. In response to his questions, management informed the employee that he was free to leave if he did not like the Dealership?s policies. The employee chose to stay with the Dealership, but continued to complain. On the same day that the employee openly questioned whether salespeople should receive minimum wage as a draw against commissions, management called him into a meeting with the owner of the Dealership. In the meeting, the owner and two managers told the employee that he was making a lot of negative comments and asking a lot of questions that they believed would negatively affect the sales team. Undaunted, the employee pressed his concerns over the commission structure, vehicle costs, and employee entitlement to minimum wage pay. Management responded that the employee needed to follow Dealership policies and that he should not complain about his pay. Management also made clear that the employee was free to work elsewhere. The employee responded to this position out of anger, raised his voice and cursed at the owner of the Dealership, calling him a ?f___ing mother f___er,? a ?f___ing crook,? an ?a__h____?, and stupid. This outburst also involved the employee standing up and pushing his chair to the side while telling the owner that if he fired the employee, Plaza would regret it. The Dealership, not surprisingly, fired the employee.

Analysis:

The employee?s questioning of the Dealership?s policies regarding breaks and compensation is without a doubt protected concerted activity under Section 7 of the NLRA. Whether it was appropriate for the Dealership to terminate the employee due to an outburst at a meeting in which the employee was engaging in protected activity is a question that required analysis.

The NLRB established a four-prong test to determine whether an employee?s conduct is so egregious as to lose the protection of the NLRA. The test requires assessment of:

(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.

In the Board?s initial decision, it found that the salesperson?s conduct was not so severe as to cause him to lose protection under the NLRA. The Board found that all four of these factors weighed in favor of the employee. Accordingly, it found that the employer violated Section 8(a)(1) of the Act by discharging the employee.

The employer appealed this decision and on appeal, the Ninth Circuit found that the employee?s ?obscene and denigrating? remarks to the owner, which the court also found to be insubordinate, caused the employee to lose the protection accorded by the NLRA. Finding that the Board erred when it found that the ?nature of outburst? factor weighed in favor of protection, the court remanded the case to the Board so that it could ?rebalance? the factors and consider whether the nature of the employee?s outburst caused protection to be lost under the NLRA.

In the Board?s second decision, where it focused primarily on the employee?s outburst, the Board concluded that the employee?s outburst was not ?menacing, physically aggressive, or belligerent?. The Board also noted that the employer?s stated reason for termination was for the employee?s verbal attack, not for any physical conduct. On reconsideration, the Board rebalanced the factors and while it agreed with the court that the third factor regarding the nature of the employee?s outburst weighed against statutory protection, it concluded that the other three factors weighed in favor of the employee and that those three factors outweighed the one factor not in favor of the employee.

SMART TIP: Managers and supervisors should be properly trained on what constitutes protected speech. Encourage managers and supervisors to be careful not to make statements that could be perceived as retaliatory or as discouraging employees from engaging in protected concerted activity.