NLRB Stands Behind Swearing Salesman

Employers beware: the National Labor Relations Board (“Board”) decided that an employer, a car dealership, unlawfully discharged an employee after his lewd outburst in a meeting. On remand from the United States Court of Appeals for the Ninth Circuit, the Board reapplied the four-factor Atlantic Steel balancing test to determine if the employee’s outburst was concerted activity or whether he in fact sacrificed his protection under the National Labor Relations Act (“NLRA”).

In its seventeen page decision, the Board agreed with the Ninth Circuit’s determination that the employee’s obscene and denigrating remarks constituted insubordination, and even acknowledged that the “nature-of-the-outburst” factor therefore weighed against protection under the NLRA. Remarkably, though, the Board decided that the other three Atlantic Steel factors (the place of the discussion, the subject matter of the discussion, and whether the outburst was in any way provoked by an employer’s unfair labor practice) heavily outweighed the outrageousness of the conduct.

Prior to his discharge, the employee had spoken to other co-workers about certain employment policies regarding work breaks, restroom facilities, and compensation. These repeated conversations circulated back to the employer, who called a meeting with the employee and several supervisors. During the meeting, the employee questioned the employer about its policies regarding vehicle costs, commissions, and minimum wage.  In response, the employer stated that if the employee did not trust the employer, then he could find another job.  The employee became enraged and began yelling obscenities at the employer.  The employee went even further by telling the dealership owner that “he was stupid, nobody liked him, and everyone talked about him behind his back.”  Once the verbal tirade concluded, the employee “stood up in the small office, pushed his chair aside, and told [employer] that if [he] fired him, [he] would regret it.”  The employee was fired.

The Board justified the outburst, stating:

We conclude that affording the Act’s protection to [employee] here serves the Act’s goal of protecting Section 7 rights without unduly impairing the [employer’s] interest in maintaining order and discipline in its establishment because the outburst was not witnessed by, and was not likely to be witnessed by, other employees. Thus, [employee’s] outburst occurred in a closed-door meeting in a manager’s office away from the workplace; the [employer] chose the location of meeting in the manager’s office where the outburst occurred; and no employee overheard [employee’s] obscene and denigrating remarks to the owner. Plaza Auto Center, Inc., 360 N.L.R.B. No. 117, 7 (2014). See the full decision here: http://mynlrb.nlrb.gov/link/document.aspx/09031d4581728ab9.

Shockingly, on the other hand, the Board found that the employer “engaged in extremely provocative acts notwithstanding that [the employer] did not curse at [the employee].”  The employee was afforded NLRA protection for his conduct, regardless of his targeted attack and profane remarks.

This decision is no doubt frightening for any employer, large or small, and should serve as a reminder of the significant weight given by the current Board to the place and subject matter of a discussion, as well as any apparent provocation factors, when determining appropriate employee discipline.

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