Swearing at the boss is protected activity, says NLRB

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If an employee swore at his supervisor and told him he was stupid, would you fire him? It’s worth a second thought after a recent decision from the National Labor Relations Board.

The board decided 2-1 that an employer, Plaza Auto Center, had violated the National Labor Relations Act by terminating the employment of a staff member who had an angry outburst against the business owner after just two months on the job.

After raising multiple concerns about issues like breaks, minimum wage, and restroom facilities, car salesman Nick Aguirre confronted the owner, and was told that if he didn’t like the policies, he need not work at the dealership. That’s when Aguirre blew up, calling his boss a “f---ing mother f---ing”, a “f---ing crook”, and an “a--hole”. He continued, calling the owner stupid, and saying nobody liked him and that all his staff gossiped about him when he wasn’t around. Then he got up, dramatically exclaiming that if the company fired him, they would regret it. Of course, they fired him.

In August 2010, the board made an initial decision that Plaza Auto Center was indeed engaging in unfair labor practices, but because Aguirre’s hostility was so extreme, he had forfeited the protection of the NLRA. However, Aguirre appealed to the Ninth Circuit in 2011, which referred the case back to the NLRB – and now, they’ve come to a new conclusion. Last week, the NLRB decided that because the outburst was not physically violent, Aguirre should have reasonably been protected by the NLRA in his discussion of his workplace’s labor practices.

Plaza Auto Center has been ordered to reinstate Aguirre and offer him backpay all the way to his termination in October 2008.

Do you agree with the reasoning behind the decision? Let us know in the comments.
  • Wes G. on 6/10/2014 6:19:44 AM

    This new decision by a pro-employee Board was intended to and succeeded in nullifying employer policies regarding conduct in the workplace. It also weakens the role of a supervisor which the Board and unions dislike as they want everyone on the same playing field.

    It may further change how case law views a "long term" employee in disciplinary situations.

    Also, I find it appalling that not only was the employee a very short-term employee, he was blatantly disrespectful AND made a verbal threat that based on the information above, was ignored.

  • Charles Little, SPHR on 6/9/2014 1:43:56 PM

    It seems if he had only worked 6o days that he probably hadn't completed his introductory or probationary period. If so they could summarily fire him for refusing to follow company rules. That not withstanding if they have a rule for gross insubordination means automatic termination

  • Dave R. on 6/6/2014 10:11:12 AM

    I would liked to have seen the Workplace Violence policy of the company. Most well-written policies extend beyond the physical act of violence to the "fear, threat or intimidation" of another. This would appear to fall in that category even more than "insubordination"....which is what I believe the NLRB is missing. Sad, very sad ruling which I fear will now set a very dangerous precedent....thank you 9th Circuit, but I'm not surprised.

  • Mike Odon on 6/5/2014 9:55:03 AM

    What about Employment at Will? The employee didn't seem to like the work environment based on his outburst and calling the boss a 'crook.' Doesn't the employer based on 'employment at will' have the right to let him go?

  • Olga Corpion on 6/5/2014 9:44:12 AM

    I disagree, there has to be respect in the workplace and this employee violated a very basic principle. I would think that Plaza Auto Center had a Code of Conduct for all their employees to follow and this behavior certainly violated that Code of Conduct.

  • Dave D. on 6/5/2014 9:43:28 AM

    I guess it's ok to be abusive to your boss, but I expect it doesn't work both ways. If you are unhappy at your job, find someplac you will be both happy and productive-and civil..

  • Dave D. on 6/5/2014 9:42:00 AM

    It's ok to take abuse (verbal) from your employees, but I would imagine it doesn't work both ways. People that are unhappy at their employment should go somewhere and be happy and productive.

  • Maya Baker on 6/5/2014 9:38:08 AM

    OMG, that is horrible. I disagree with that NLRB decision as it allows 'bad behavior' to go unchecked and without consequence. Reasonable people do not curse out their managers/bosses and expect to remain employed.

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