Here are the basic facts of a case (Plaza Auto Center, Inc. and Nick Aguirre, Case 28-CA-022256, May 28, 2014) that has raised a question regarding the inherent conflict between “protected activity” under the National Labor Relations Act (NLRA) and insubordinate behavior by employees:
• Nick Aguirre became employed by Plaza Auto Center in Yuma Arizona in August 2008 as a car salesman and held that position for two months;
• During his brief tenure, he complained to both fellow employees and company managers about company policies, breaks, and compensation;
• On October 28, 2008, Aguirre was called to a meeting with Tony Plaza, the owner of Plaza Auto Center, and two sales managers;
• Plaza began the meeting by telling Aguirre that he was “talking a lot of negative stuff” and asking too many questions;
• Plaza told Aguirre that he should not be complaining about pay, and that if Aguirre didn’t trust him, he need not work there;
• At that point, Aguirre lost his temper, and in a raised voice called Plaza a “f***ing crook” and an “a**hole,” and told Plaza that he was stupid and that no one liked him;
• During his tirade, 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 an evidentiary hearing on the charge filed by Aguirre, an Administrative Law Judge (ALJ) found that Plaza Auto Center had violated the NLRA by inviting Aguirre to quit in response to his protests regarding working conditions. However, the ALJ also found that Aguirre lost the protection of the NLRA by his “belligerent” behavior in speaking to Plaza in “obscene and personally denigrating terms accompanied by menacing conduct and language.”
The Acting General Counsel appealed the decision to the full National Labor Relations Board (NLRB), which determined that Aguirre’s conduct was not severe enough to cause him to lose the NLRA’s statutory protections and, therefore, that his firing violated the Act.
At the point, Plaza Auto Center appealed to the 9th U.S. Circuit Court of Appeals, which found that Aguirre’s behavior was insubordinate and “counted against” his retaining the Act’s protection. It found that the NLRB’s rejection of the ALJ’s findings that Aguirre’s behavior was “belligerent,” “menacing,” and “at least physically aggressive,” created an internal inconsistency in the Board’s decision. It then remanded the case back to the NLRB for further review.
On re-review, the NLRB determined that while Aguirre’s behavior was obscene and personally denigrating, other factors “compellingly favor Aguirre’s retaining the protection of the NLRA.” First, the Board found that Aguirre’s conduct was not menacing, physically belligerent, or aggressive, and that “it seems clear” that Aguirre’s statement that Plaza would “regret it” if he fired Aguirre was a simple threat of legal action, and not a threat of physical violence.
As for the ALJ’s finding that Aguirre’s action in pushing his chair aside was menacing, the Board found that in Plaza’s small office, “it likely would have been difficult for Aguirre to stand up without pushing his chair aside.” Also, because Aguirre had no prior history of violent or threatening behavior (in the two months within which he worked at Plaza Auto Center), and because there was “no evidence that Aguirre tried to hit Plaza, or even made a fist,” the Board rejected the ALJ’s finding that Aguirre’s behavior was menacing, physically aggressive, or belligerent.
The Board’s decision that Aguirre’s behavior did not cause him to forfeit the protections of the NLRA are based – according to the Board – on a balancing of an employee’s right to engage in concerted activity and an employer’s need to maintain order and respect in its establishment.
Employers should take notice of this case when making decisions to discipline or fire an employee who has complained about the terms and conditions of employment, even if that employee uses obscenities and acts in what could be viewed as a threatening manner.
However, there is one factor which is mentioned numerous times in the Board’s opinion, and which could provide some additional direction to employers: Aguirre’s outburst occurred immediately after Plaza’s inference that Aguirre could quit if he didn’t like the company’s policies. Labeling that comment a “provocation” of Aguirre’s reaction, the Board determined that Aguirre’s firing was in violation of the NLRA.
The remedy for Plaza Auto Center’s violation of the Act was immediate reinstatement of Aguirre with back pay and benefits paid to him, along with reimbursement for any “adverse tax consequences” of that repayment; Aguirre’s personnel file was to be cleaned of any reference to his firing, and the company we required to post a Notice which requires a link and a QR code to the Board’s full decision, along with statements related to employees’ right to form a union and engage in activities protected by the NLRA.
Employers take note: Plaza’s implication that he was refusing to change the company policies related to wages and breaks, and his statement that Aguirre may as well leave if he was dissatisfied clearly worked against Plaza in this circumstance. The Board viewed Plaza’s statement as a refusal to hear Aguirre’s concerns or give them any attention, and viewed the firing as a reaction to Aguirre’s protected activity in making the complaints. This case provides one piece of usable advice to managers: a don’t-let-the-door-hit-you-on-the-way-out statement in response to an employee’s concerns related to working conditions can create unintended risk and liability under the NLRA.