Wednesday, June 4, 2014

What the f‽ NLRB allows employee to curse out the boss

During a meeting about commissions, minimum wage, and employee breaks, an employee lost his temper, angrily calling his supervisors words such as “f***ing mother f***ing,” f***ing crook[s],” and an “a**hole.” He also stood up, shoved his chair aside, and told them they would regret it if they fired him. Unsurprisingly, that tirade resulted in the employee’s termination. Astoundingly, in Plaza Auto Center (5/28/14) [pdf], the NLRB concluded that the termination was an unlawful violation of the employee’s rights to engage in the protected concerted activity.

We conclude that affording the Act’s protection to Aguirre here serves the Act’s goal of protecting Section 7 rights without unduly impairing the Respondent’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, Aguirre’s outburst occurred in a closed-door meeting in a manager’s office away from the workplace; the Respondent chose the location of meeting in the manager’s office where the outburst occurred; and no employee overheard Aguirre’s obscene and denigrating remarks to the owner.

We also conclude that affording the Act’s protection to Aguirre will further the Act’s goal of protecting Section 7 rights without unduly impairing the Respondent’s legitimate interest in maintaining workplace discipline and order for the additional reason that the Respondent provoked Aguirre’s outburst…. Aguirre’s outburst occurred contemporaneously with Plaza’s twice suggesting that Aguirre could quit if he did not like the Respondent’s policies, Plaza’s censure of Aguirre’s protected activities as a lot of negative stuff, and Plaza’s telling Aguirre that he should not complain about Respondent’s pay structure, all of which made clear that he would not engage in the merits of Aguirre’s complaints.

This case should be troubling to all employers. Apparently, we live in a world in which an employee can call his boss a f***ing mother f***er” and get away with it, merely because it was said during a meeting in which the employee also happened to be discussing certain working conditions. If an employer cannot enforce reasonable restrictions agains insubordination (especially to this level), then we are. It that far from the NLRB letting the chickens run the workplace henhouse. How will employers be able to effectively manage then?

[Hat tip: Today’s General Counsel]