Employees sometimes get upset at work. Employers and managers sometimes do things that can cause that upset. But many employers, and I suspect many employees, believe there is a line that cannot be crossed in expressing the dismay about an employer’s action(s). There is, not surprisingly, always debate about where that line should be drawn.
In a recent decision, the NLRB added fuel to that debate. The case, Plaza Auto Center (pdf), involved an employee who had a habit, during his short time selling used cars for the employer, of complaining about various problems he perceived with his work environment. This included issues dealing with wages, restroom break policies, and deductions from pay to cover damage to vehicles. Indeed, on the issue of wages, the employee complained that he, and the other salesmen, should receive at least minimum wage under state law. The employee contacted the applicable state agency, and after the state agency contacted the company, the company changed how it paid its employees.
These complaints culminated in a meeting between the employee, the owner of the company, and two of the company’s managers. During the meeting, the owner told the employee that he complained too much, that he was asking too many questions, that he was "talking a lot of negative stuff," and that he had to follow the employer’s policies. The owner also told the employee – twice – that if he didn’t trust the company, he didn’t need to work for the company.
At that point, the employee "lost his temper" and engaged in the following conduct:
- Called the owner a "f***ing mother f***er," a "f***ing crook," and an "asshole";
- Told the owner that he was stupid, no one liked him, and everyone talked about him behind his back;
- Stood up in the small office during the verbal outburst and pushed his chair aside; and
- Told the owner that if the owner fired him, the owner would regret it.
After the employee finished with his tirade, the owner fired him.
On these facts, the NLRB majority held that the employee did not lose the protection of the NLRA. Applying a well-established, multi-factor "balancing" test, the NLRB concluded that the employee’s language was "obscene and denigrating," but specifically found that the language and other conduct was not "menacing, physically aggressive, or belligerent." A federal court of appeals, considering the same conduct, had described it as "insubordinate."
But this was not enough to find the employee was properly fired. Thus, the NLRB noted that the conduct took place in a private office (not in front of other hourly employees), the subject matter of the meeting involved concerted complaints about the conditions of employment, and the employer "provoked" the employee. The "provocation" took the form of telling the employee that he didn’t need to work for the company if he didn’t like its policies and in refusing to deal with the merits of the employee’s complaints about working conditions. Because these considerations outweighed, in the NLRB majority’s view, the nature of the outburst, the employer was not legally permitted to terminate the employee.
In a strongly worded dissent, Member Johnson (R) took issue with the majority’s decision on a number of different fronts, including whether the majority interpreted directions from the federal court of appeals in the case correctly. His dissent is summed up in the following (edited) passage from his opinion:
[M]y colleagues’ 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 [NLRA] mandates tolerance of it whenever profane and menacing outbursts are somehow connected to protected concerted activity. I disagree. … In my view, few, if any, employers would countenance [the employee’s] behavior in the absence of protected activity. … Indeed, the abnegation of the [employer’s] right to discharge [the employee] in the circumstances of this case runs counter to the overarching policies of promoting industrial peace and labor relations stability under the [NLRA] and impedes effective enforcement of other employment laws.
The case is chock full of important points for labor professionals. Just of few of those are:
- Profanity may not automatically support termination. Labor professionals must look at the context of the statement and ensure that protected concerted activity is not involved.
- Engaging with employees on issues of concern is not just a smart practical measure, but can also reap benefits in the legal arena as well.
- Don’t make termination decisions in the heat of the moment. Take some time to consider, reflect, and consult with a labor professional who can provide an assessment of the misconduct before acting.