You would think that an employee who told his boss – to his face – that he was a “f***ing crook” and an “a**hole” and that the boss “would regret it if you fire me” – SHOULD be fired. Not according to the NLRB.
The Outburst
In this case that a federal court sent back to the NLRB for reconsideration, a non-union employee approached his boss to complain about breaks, restroom facilities and his commission compensation. His boss said if he disliked the way things were run, then he didn’t have to work there. That led to the employee’s loud outburst and the profanity, and the employee was fired. In 2010, the NLRB ordered the employer to rehire the employee and pay him over two years’ back pay.
Why the Cussing Was Protected
The reasoning of the two Obama-appointed members over the dissent of the Republican appointee was that: the meeting was about wages hours and working conditions; the outburst was provoked by the statement of the boss that the employee could leave if he didn’t like working there; the location of the meeting was in a management office away from other employees; and the statements were not accompanied by any threat of physical harm or insubordination.
The employer appealed to the Federal Appeals Court where the court, in 2011, remanded the case back to the NLRB to reconsider what appeared to be an unreasonable decision. The NLRB did reconsider but came to the same conclusion that firing the employee for the outburst of profanity was unlawful! The decision that was reported on May 28, 2014 by the NLRB was decided by two different Democratic members despite a very pointed and stinging dissent by the Republican member.
Lessons for Employers
There are several lessons here:
- First, the NLRB will likely continue to be more employee friendly;
- Second, it’s best to suspend the employee when such an outburst happens so that cooler heads can analyze the situation; and
- Third, don’t threaten to fire or take offense at an employee who questions your employment policies.
According to the NLRB, that employee is protected even if they cuss you out!
References: Plaza Auto Center, Inc. (NLRB 2010).
Plaza Auto Center, Inc. v. NLRB, (9th Cir. 2011) Remanded to NLRB for reconsideration.
Plaza Auto Center, Inc. (NLRB, 2014).
If you have any questions, please contact Steve Lyman at slyman@wp.hallrender.com or your regular Hall Render attorney.
