On remand from the Ninth Circuit, the National Labor Relations Board in Plaza Auto Center, Inc., 360 NLRB No. 117 (2014), again found 2-1 that an employer violated the National Labor Relations Act by firing an employee for an outburst during which the employee used profanity and personally attacked the owner of the business. Specifically, after complaining to the office manager about the employer’s compensation practices, the owner called the employee into a meeting and told the employee that he was “talking a lot of negative stuff” and asking too many questions.

Plaza [the owner] told Aguirre [the employee] that he had to follow the Respondent’s policies and procedures … and that he should not be complaining about his pay. Plaza twice told Aguirre that if he did not trust the Respondent, he need not work there. At that point, Aguirre lost his temper and in a raised voice started berating Plaza, calling him a “fucking mother fucking,” a “fucking crook,” and an “asshole.” Aguirre also told Plaza that he was stupid, nobody liked him, and everyone talked about him behind his back. During the outburst, Aguirre stood up in the small office, pushed his chair aside, and told Plaza that if Plaza fired him, Plaza would regret it. Plaza then fired Aguirre.

In assessing whether an employee’s behavior is so egregious to lose protection of the Act, the Board considers the four factors enunciated in Atlantic Steel Co., 245 NLRB 814 (1979): (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by the employer’s unfair labor practices.

While the administrative law judge found that the employee lost protection of the Act because of his “belligerent” conduct, the Board’s initial 2-1 decision (355 NLRB 493) concluded that the employee’s conduct was not so severe as to cause him to lose his statutory protections. In reaching that conclusion, the Board found that all four Atlantic Steel factors weighed in favor of protection. The Ninth Circuit (Plaza Auto Center, Inc. v. NLRB, 664 F.3d 286 (9th Cir. 2011)), agreed on three of the factors, but remanded the case back to the Board because it found that the Board had erred in its initial assessment that the nature-of-the-outburst factor weighed in favor of protection.

On remand, Chairman Pearce and Member Hirozawa rejected the ALJ’s finding that the employee’s behavior was “belligerent,” “menacing,” and “at least physically aggressive if not menacing,” but agreed with the Ninth Circuit’s finding that the nature-of-the-outburst factor weighed against protection. Nevertheless, the Board still found that the other three factors weighed in favor of the employee retaining protection of the Act because:

  • the outburst occurred in a closed-door meeting in a manager’s office away from the workplace;
  • the subject matter concerned the employee’s protected conduct; and
  • the employee’s conduct was provoked by the employer’s unfair labor practice of inviting the employee to quit if he did not like the employer’s policies.

Moreover, the outburst:

was a spontaneous reaction to the Respondent’s serious, unlawful provocations by an employee who had never previously engaged in similar misconduct.

Member Johnson issued a “vigorous dissent” given the Board majority’s reversal of the ALJ’s critical credibility findings and that it failed to follow the decision of the Ninth Circuit. However, he further noted that he would dissent even if the Board had authority to review the entire case anew:

my colleague’s analysis of the permissible range of profane and insubordinate conduct by employees toward management is cause for disagreement. Their approach implies that such misbehavior is normative, or at least that the Act mandates tolerance of it whenever profane and menacing outbursts are somehow connected to protected concerted activity. I disagree. By this standard, employees like Nick Aguirre will be permitted to curse, denigrate, and defy their managers with impunity during the course of otherwise protected activity, provided that they do so in front of a relatively small audience, can point to some provocation, and do not make overt physical threats. In my view, few, if any, employers would countenance such behavior in the absence of protected activity. I do not believe they must act so differently when the confrontation involves protected activity.