NLRB excuses worker’s use of F-Bomb

NLRBIf workers are continually provoked and goaded by managers, they may at some point respond emotionally.  Some may cry. Some may swear. Where is the line between an excusable outburst and misconduct that is serious enough to justify termination?

This issue was recently addressed by the National Labor Relations Board (NLRB) in a case involving a car salesperson, Nick Aguirre, who was fired after an outburst directed at his boss, Tony Plaza, the owner of Plaza Car Center of Yuma, Arizona.  In a split decision, the Board found that Plaza had violated the National Labor Relations Act (NLRA) and ordered Plaza to reinstate Aguirre with back pay.  Section 8 of the act protects employees who are acting to improve their working conditions.

Aguirre  let loose with a string of epithets after Plaza refused to allow him to take restroom and lunch breaks, allegedly shorted him on earned commissions and refused to pay salespeople the minimum wage as required by law. Plaza  repeatedly responded to Aguirre’s complaints by inviting him to quit.  At a private meeting in Plaza’s office, Aguirre told Plaza he had contacted a state agency about Plaza’s refusal to pay the minimum wage. When Plaza  again invited Aguirre to quit, Aguirre called Plaza   a “f—-ing crook” and “a—hole”  whom nobody liked and who everyone talked about behind his back. Aguirre then stood up in a small office, pushed his chair aside, and told  Plaza that  if he was fired, Plaza would “regret it.” He was fired.

The key consideration in the case was whether Aguirre was physically menacing toward Plaza, a determination that the board said must be made using an “objective standard” as opposed to Plaza’s subjective interpretation of the incident.

The majority concluded that Aguirre was not threatening physical harm but legal action to require Plaza to pay the minimum wage. Since it was a very small office, the board said, it was likely that Aguirre had no choice but to push his chair aside to leave the office. “Moreover,” said the board, “the facts in this case persuade us that Aguirre’s outburst would not have occurred but for the Respondent’s provocation, which included threats of discharge.” The board said an employee’s right to  engage in concerted activity permits “some leeway for impulsive behavior.”

In a 2-1 decision,  NLRB Chairperson Mark Gaston Pearce and board member Kent Y. Hirozawa  ruled that Plaza had violated the NLRA by discharging Aguirre because he had engaged in protected concerted activity –  consulted the state agency about his right to be paid the minimum wage.  They ordered Plaza to offer Aguirre immediate reinstatement and pay him for any loss of earnings and benefits.  The majority reversed a decision by an administrative law judge who had  dismissed Aguire’s complaint after finding that he had forfeited the protection of the NLRA by his “ obscene and personally denigrating terms accompanied by menacing conduct and language.”

In a dissent, board member Harry I. Johnson, III,  agreed that Aguirre was engaging in protected activity when the incident occurred but said the board should have upheld the administrative law judge’s decision because it was based upon credibility determinations with respect to the parties in the case.  Furthermore, Johnson said, “It is entirely reasonable, and to a great extent legally necessary, for many employers to insist that employees engage each other with civility rather than personally directed f-bombs even on matters where opinions differ sharply and emotions flare.”

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