Author: Erin Alderson, Notes and Comments Chair, University of Cincinnati Law Review
Before the Plaza Auto Center[1] decision, one could probably assume that calling your boss a “f—— m—— f——” would fall into the category of egregious conduct. In its Plaza Auto Center decision, however, the National Labor Relations Board (the NRLB) determined that even when an employee screams obscenities at his boss, he does not fall outside of the scope of protection of the National Labor Relations Act.
The National Labor Relations Act (NRLA) protects the right of employees to engage in collective bargaining. The NLRA governs union associations, but it also protects the right of non-unionized employees to engage in “concerted activity.” Generally, protected “concerted activity” occurs whenever two or more employees act together to improve their terms and conditions of employment. Employees have a right to advocate in this manner even if there is no union involved. Section 7 of the NLRA explicitly protects this right: “Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”[2] If an employee acts egregiously in exercising that right, however, the employee can be outside of the scope of protection of the NLRA.[3]
A single verbal outburst does not remove an employee from the protection of the statute. Generally, communications are protected unless they are “so violent or of such a serious character as to render the employee unfit for service.”[4] Plaza Auto Centers considered whether the employee’s language coupled with his conduct was sufficiently egregious to remove the employee from the protection of the statute.
Why Cursing Out Your Boss Was Prohibited
In Atlantic Steel, the NLRB established the standard for determining whether an employee’s conduct during the concerted activity removes the employee from the NLRA’s protection. The decision as to whether an employee has “crossed the line” depends on the following factors:
- The place of the discussion;
- The subject matter of the discussion;
- The nature of the employee’s outburst;
- Whether the outburst was, in any way, provoked by the employer’s unfair labor practice. [5]
In Atlantic Steel, the NLRB concluded that an employee had removed himself from the protection of the NLRA when he called the foreman a “lying son of a b—” or a “m—f— liar.”[6] The employee was initially engaged in protected activity when he questioned why the company offered overtime to a probationary employee. Then the foreman investigated and concluded that all of the employees were offered overtime. However, the employee removed himself from the protection of the NLRA when he subsequently made the obscene statements to the foreman. Because the employee fell outside of the scope of protection of concerted activity with his obscenities, the NLRB concluded that the employee’s termination was not in violation of the NLRA.
Plaza Auto Center
Nick Aguirre was a car salesman at Plaza Auto Center. While he worked there he discussed the employer’s policy on breaks, restroom facilities, and compensation practices with other employees. He continued to raise various complaints and questions to management about compensation and commissions. On one occasion, he was complaining to the office manager about the employer’s compensation practices and the owner called Aguirre into a meeting in his office. During the meeting the owner told Aguirre that he should not be complaining about his pay and if Aguirre did not trust the owner then he should get another job. Aguirre lost his temper and started screaming graphic obscenities at the owner. He also told the owner that “he was stupid, nobody liked him, and everyone talked about him behind his back.”[7] He stood up in the small room, pushed his chair aside, and told the owner that “he would regret it” if he fired him.[8] The owner proceeded to fire Aguirre.
The administrative law judge who initially heard the case believed that Aguirre’s conduct of berating the owner in “obscene and personally denigrating terms accompanied by menacing conduct and language” removed Aguirre’s “concerted activity” from the protection of the NLRA.[9] Then the NLRB heard the case and initially concluded that Aguirre’s conduct was not so egregious as to lose the protection of the Act.[10] The NLRB found that all four of the Atlantic Steel factors weighed in favor of protection. On appeal from the NLRB, the Ninth Circuit Court of Appeals found that while three of the factors weighed in favor of protection, the fourth factor, the “nature-of-the-outburst” factor, weighed against Aguirre.[11] The Ninth Circuit remanded the case back to the NLRB to rebalance the Atlantic Steel factors to determine whether the nature of the outburst caused Aguirre to forfeit his protection under the NLRA.
In many ways, the situation in Plaza Auto Center was similar to the situation that occurred in Atlantic Steel. In both, an employee was engaged in a protected activity. In Atlantic Steel the employee was questioning overtime shifts and in Plaza Auto Centers the employee was questioning commissions and wages. When the employee in each situation received what they deemed to be an “unsatisfactory” answer, each employee began screaming obscenities. The NLRB concluded in Atlantic Steel, however, that the employer did not need to tolerate such graphic and obscene insubordination. “Indeed, a contrary result in this case would mean that any employee’s offhand complaint would be protected activity which would shield any obscene subordination short of physical violence.”[12] Under Atlantic Steel, it seemed clear that Nick Aguirre’s language coupled with his pushing of a chair and the threat to his boss would remove him from the scope of protection of the NLRA. To the surprise of many legal scholars, and against the recommendations of both the Administrative Law Judge and the Ninth Circuit, the NLRB afforded Nick Aguirre the protection of the statute.
On remand, the NLRB concluded that Aguirre’s conduct was not “menacing,” “belligerent,” or “physically aggressive.” The NLRB did not consider Aguirre’s statement to the owner that he would “regret” firing him to be “threatening” because it lacked specificity and certainty. This finding was in spite of the fact that Aguirre made the statement while pushing a chair. The NLRB believed that due to the small nature of the office, it would have been “difficult for Aguirre to stand up without physically pushing his chair aside.”[13] Furthermore, the Board found that Aguirre was provoked because the owner’s comment that Aguirre could find somewhere else to work could be interpreted as a threat to fire Aguirre. Essentially, the “you’ll regret this” comment was not a threat, but the employer’s suggestion that the employee could find somewhere else to work was a threat. The Board ultimately disagreed with the administrative judge’s decision that Aguirre’s conduct was “menacing, physically aggressive, or belligerent.”[14] Even in rebalancing the Atlantic Steel “nature-of-the-outburst” factor after ordered to do so on remand from the Ninth Circuit, the NLRB still found that Aguirre’s conduct warranted protection. The NLRB reasoned that if the other three Atlantic Steel factors weighed in favor of protection, then the protection should extend to the employee’s activity, despite the nature-of-the-outburst factor.[15]
Why the NLRB Got It Wrong
Member Johnson authored a scathing dissenting opinion in the Plaza Auto Center decision:
“It is certainly not our mandate to define deviance down by federalizing a right to extreme profanity in every national workplace regardless of its existing norms or customs.” [16] “I find that my colleagues go well beyond their reasonable amount of leeway required for the protection of Section 7 activity.”[17]
Member Johnson ultimately concluded that the Board should have respected the Administrative Judge’s determination that Aguirre’s conduct was indeed “menacing, physically aggressive, and belligerent” and that the Board should have followed the Ninth Circuit’s directions upon remand.
Member Johnson is correct in asserting that the Plaza Auto Centers decision establishes dangerous precedent. It is misleading in to say that any employee, at any time, can scream obscenities at his or her boss. It would be naïve to believe, however, that the “concerted activity” element is the hurdle that most employees would need to overcome to receive the protection of the NLRA. It is not difficult for an employee to demonstrate that he was engaged in concerted activity – even if he acted individually. If an employee is acting alone but discusses the work issue with a co-worker previously and is acting for the mutual benefit of his co-workers, he is engaged in “concerted activity.” Previously, the “egregious conduct” exception provided a check on an employee’s concerted activity, though, because concerted activity would not be protected if the employee acted egregiously. By finding that screaming profanities, hurling personal insults, and saying “you’ll regret this” to an employer are not egregious conduct, the NLRB opens a metaphorical Pandora’s box of horrendous conduct that must now be tolerated by employers. The NLRB damaged one of the employer’s of the most basic managerial prerogative – to control employee conduct in the workplace. By requiring management to tolerate such offensive and obscene behavior in the name of “concerted activity,” the NLRB forces employers to place themselves and their employees in danger. Employees can and should complain about working conditions without hurling insults and profanities at their boss or acting “like characters in a Scorsese film.”[18]
Additionally, the NLRB exceeded their authority in reaching this conclusion. As Member Johnson noted in his dissent, like most courts of appeals, the NLRB does not have the authority to make factual credibility determinations. The NLRB is supposed to accept the Administrative Law Judge’s interpretation of the facts. In concluding that Aguirre’s conduct was not egregious, but rather benign, the NLRB substituted its interpretation of the facts for the judge’s interpretation of the facts. The NLRB failed to give full effect to the judge’s credibility-based findings. “Instead, they claim not to be reversing the judge at all, artificially separating her actual credibility findings from an ‘objective’ assessment of the nature of the conduct so found.”[19] Furthermore, the NLRB essentially ignored the Ninth Circuit’s instruction to rebalance the Atlantic Steel factors by finding that the other factors suddenly weighed more heavily than the nature-of-the-outburst factor. The NLRB erred in concluding that the nature of Aguirre’s outburst weighed in favor of protection, and the Ninth Circuit corrected the error and remanded the case back to the NLRB. In a stubborn attempt to maintain its desired result, the NLRB suddenly determined that the other factors merited greater consideration and weight, completely circumventing the Ninth Circuit’s instructions on remand.
Conclusion
The NLRB ignored the Ninth Circuit, ignored the creditability determinations of the Administrative Law Judge, and ignored prior precedent in an attempt to protect an employee who did not merit protection. The NLRB’s attempt to maintain its desired outcome has created dangerous precedent going forward. Congress created the NLRA to protect employees against injustices in the workplace. The Plaza Auto Center decision erodes a crucial component of this intended purpose. While employers should be encouraged and rewarded for having discussions with employees about workplace conditions, according to the NLRB, in the course of those discussions employers must now tolerate obscene and personally offensive language. After this decision, employers essentially no longer have an incentive to engage voluntarily in discussions regarding workplace conditions – at the risk of being cursed out. Hopefully the case will be appealed once again to the Ninth Circuit, who will once again overturn the Board’s decision and correct this dangerous precedent.
[1] Plaza Auto Center, 360 NLRB No. 117 (2014), http://www.nlrb.gov/cases-decisions/board-decisions?volume=360.
[2] National Labor Relations Act, 29 U.S.C. § 157. Available at http://www.nlrb.gov/resources/national-labor-relations-act.
[3] See Atl. Steel Co., 245 NLRB 814, 816 (1979) (…“the board and the courts have recognized (as did the Administrative Law Judge in passing) that even an employee who is engaged in concerted protected activity can, by opprobrious conduct, lose the protection of the Act”).
[4] St. Margaret Mercy Healthcare Centers, 350 NLRB 203, 204-25 (2007).
[5] Atl. Steel Co., 245 NLRB at 816.
[6] Id.
[7] Plaza Auto Ctr., 355 NLRB 493, 494 (Aug. 2010).
[8] Id.
[9] Id. at 506.
[10] Plaza Auto Ctr., Inc. v. NLRB, 644 F.3d 286, 292 (9th Cir. 2011).
[11] Id. at 295.
[12] Atl. Steel Co., 245 NLRB 814, 816 (1979).
[13] Plaza Auto Center, 360 NLRB No. 117, 5 (2014), available at http://www.nlrb.gov/cases-decisions/board-decisions?volume=360.
[14] Id. at 10.
[15] Id.
[16] Id. at 15.
[17] Id. at 16.
[18] Id.
[19] Id. at 14.
