Employee Who Pushed Chair Aside and Hurled Obscenities at Manager Punctuated by Threat Did Not Lose NLRA Protections: NLRB | Practical Law

Employee Who Pushed Chair Aside and Hurled Obscenities at Manager Punctuated by Threat Did Not Lose NLRA Protections: NLRB | Practical Law

In Plaza Auto Center, the US Court of Appeals for the Ninth Circuit remanded the case to the National Labor Relations Board (NLRB), requesting that the NLRB give full effect to the factual and credibility findings of an NLRB administrative law judge (ALJ), who determined that an employee's obscenity-laced outburst was menacing, physically aggressive or belligerent. The court also asked the NLRB to reapply its Atlantic Steel test in light of these credibility and factual findings to determine whether an employer's termination of the employee violated the National Labor Relations Act (NLRA). On remand, the NLRB overruled the ALJ's factual conclusions and, reapplying Atlantic Steel, again held that the employee's outburst did not cause him to lose the protections of the NLRA because he was engaged in protected Section 7 activity, did not expressly threaten physical harm and was in front of a small audience away from the rest of the employees.

Employee Who Pushed Chair Aside and Hurled Obscenities at Manager Punctuated by Threat Did Not Lose NLRA Protections: NLRB

by Practical Law Labor & Employment
Published on 04 Jun 2014 • USA (National/Federal)
In Plaza Auto Center, the US Court of Appeals for the Ninth Circuit remanded the case to the National Labor Relations Board (NLRB), requesting that the NLRB give full effect to the factual and credibility findings of an NLRB administrative law judge (ALJ), who determined that an employee's obscenity-laced outburst was menacing, physically aggressive or belligerent. The court also asked the NLRB to reapply its Atlantic Steel test in light of these credibility and factual findings to determine whether an employer's termination of the employee violated the National Labor Relations Act (NLRA). On remand, the NLRB overruled the ALJ's factual conclusions and, reapplying Atlantic Steel, again held that the employee's outburst did not cause him to lose the protections of the NLRA because he was engaged in protected Section 7 activity, did not expressly threaten physical harm and was in front of a small audience away from the rest of the employees.
In Plaza Auto Center, the US Court of Appeals for the Ninth Circuit remanded the case to the panel (Board) heading the NLRB's judicial functions, requesting that the Board give full effect to the factual and credibility findings of an NLRB administrative law judge (ALJ), who determined that an employee's obscenity-laced outburst at the owner of a company was menacing, physically aggressive or belligerent. The court also asked the Board to reapply its Atlantic Steel Co. (245 N.L.R.B. 814 (1979)) test, in light of these credibility and factual findings which the Board previously discounted, to determine whether the employer violated the NLRA by terminating the employee. (Plaza Auto Ctr. v. NLRB, 664 F.3d 286 (9th Cir. 2011).)
On May 28, 2014, on remand, the Board overruled the ALJ's factual findings and, reapplying Atlantic Steel, again held that the employee's outburst did not cause him to lose the protections of the NLRA because, in part, he:
  • Was engaged in protected Section 7 activity.
  • Was provoked by employer unfair labor practices (ULP).
  • Did not expressly threaten physical harm.
  • Was in front of a small audience away from the rest of the employees for his outburst.
Accordingly, the Board affirmed a prior Board panel's conclusion that the employer violated Section 8(a)(1) of the NLRA by terminating the employee (360 N.L.R.B. slip. op. 117, (May 28, 2014).)
For information about the Atlantic Steel test, see Practice Note, Discipline and Discharge in a Unionized Workplace: Disciplining for Outbursts that Lose NLRA Protections.

Background

Aguirre was hired to work at Plaza Auto Center Inc. in October 2008. After he made several complaints about working conditions and commission payments, Aguirre was called into a meeting with his supervisors where he noted that he had questions about vehicle costs and calculations for commission payments in light of the minimum wage. They responded that if he did not trust the employer's calculations he need not work there. Aguirre lost his temper and berated Plaza's owner:
  • Calling him:
    • a fucking mother fucking [sic];
    • a fucking crook; and
    • an asshole.
  • Telling him that:
    • he was stupid;
    • nobody liked him; and
    • everyone talked about him behind his back.
Aguirre then stood up, pushed his chair aside and told the owner that if he fired him, "he would regret it."
Plaza terminated him immediately.
Aguirre filed a ULP charge with the NLRB, and after the NLRB issued a complaint and tried the matter, an NLRB ALJ issued a decision:
  • Finding that Plaza violated Section 8(a)(1) of the NLRA by inviting Aguirre to quit in response to his protected complaints about working conditions.
  • Finding that Aguirre, under Atlantic Steel's four factor test, lost the protections of the NLRA. Consistent with testimony he credited, the ALJ found Aguirre's outburst was menacing, physically aggressive or belligerent and included obscene language directed towards the owner.
  • Dismissing the allegation that Plaza unlawfully discharged Aguirre.
The NLRB's General Counsel filed exceptions to the ALJ's dismissal of the unlawful discharge claim. The Board held that Aguirre's outburst did not cause him to lose the NLRA's protection, finding that all four Atlantic Steel factors, including the nature-of-the-outburst factor, weighed in favor of finding that his actions were protected. Therefore, the Board held that Plaza's termination of Aguirre violated Section 8(a)(1). (Plaza Auto Ctr., 355 N.L.R.B. 493 (2010).)
Plaza filed a petition for review of the Board's decision and the Board filed a cross-application to enforce the decision in the Ninth Circuit. The Ninth Circuit held that three of the four Atlantic Steel factors weighed in favor of finding that Aguirre did not lose protection, however, the Board erred when it found that the nature-of-the-outburst factor supported Aguirre. The court held that his personally denigrating and insubordinate remarks to management caused him to lose the protections of the NLRA. The court remanded the decision to the Board to:
  • Properly consider whether the nature of his outburst caused Aguirre to lose protection by rebalancing the Atlantic Steel test.
  • Resolve the inconsistency in its decision with reasonable justification because the Board stated that it adopted the ALJ's credibility and factual findings, but then rejected the ALJ's findings that Aguirre's conduct was "belligerent," "menacing" and "at least physically aggressive if not menacing."
(Plaza Auto Ctr. v. NLRB.)

Outcome

On remand, in a 2-1 decision (Chairman Pearce and Member Hirozawa with Member Johnson dissenting) the Board majority held that:
  • Aguirre's conduct was not objectively menacing, physically aggressive or belligerent, even if credited witnesses testified that it was.
  • Aguirre's outburst did not cause him to lose the protections of the NLRA. Even though the nature-of-the-outburst factor weighed against him, the remaining three Atlantic Steel factors weighed in favor of finding he was protected.
  • Plaza violated Section 8(a)(1) when it discharged Aguirre.
Applying an objective standard to assess the nature of Aguirre's conduct, the majority held that it was not menacing, physically aggressive or belligerent because:
  • His comment that Plaza would regret firing him was not a threat of physical harm since it:
    • did not explicitly refer to physical harm; and
    • was ambiguous on its face.
  • There was no credited evidence that Aguirre had attempted to commit or threatened to commit any violent acts during his employment tenure with Plaza.
  • In context, it was clear that Aguirre was threatening legal consequences since earlier that morning he had mentioned to an office manager that he was contacting the state agency about Plaza's alleged minimum wage violations.
  • The ALJ's reasoning that Aguirre's conduct was menacing, physically aggressive and belligerent was flawed because:
    • ambiguous statements that are not contemporaneously qualified are not necessarily physical threats;
    • it would have been difficult in a small room for Aguirre to stand up without pushing his chair aside;
    • no one made any effort to restrain Aguirre or remove him from the property after firing him; and
    • the owner did not characterize Aguirre's conduct as menacing or even mention it in his written description of the outburst or his position statement.
Rebalancing the Atlantic Steel factors as directed on remand, the Board majority agreed with the Ninth Circuit's finding that the nature-of-the-outburst factor weighed against Aguirre because:
  • He had repeatedly used obscene and denigrating language with profanity.
  • There was evidence that Plaza did not tolerate employees using profanity towards management.
The Board majority held that, although the nature-of-the-outburst factor weighed against Aguirre, the remaining three factors weighed in favor of finding that he did not lose the protections of the NLRA because:
  • The meeting concerned Aguirre's concerted complaints about the terms and conditions of his employment, which were within his Section 7 rights under the NLRA.
  • The location of the outburst, a very significant factor, was a closed-door office away from the workplace where Plaza's interest in maintaining order was less than it would have been had the outburst occurred in front of other employees.
  • Plaza's actions were extremely provocative when, after Aguirre complained about Plaza's working conditions, it:
    • made two implied threats of discharge; and
    • refused to deal with the substance of his complaints.
  • Aguirre's outburst likely would not have occurred but for Plaza's provoking behavior, noting that:
    • the outburst occurred at the same time as Plaza's implied threats of discharge;
    • there was no evidence that Aguirre had ever engaged in similar misconduct; and
    • there was no evidence that his outburst was premeditated.
The Board majority denied the dissent's assertion that it failed to apply the law of the case because:
  • It used an objective standard to determine whether Aguirre's conduct was menacing, physically aggressive or belligerent, rather than rely on subjective testimony that the conduct was menacing, physically aggressive or belligerent, which the ALJ credited. The majority rejected the ALJ's factual conclusions from the record evidence not the ALJ's credibility determinations about testimony supporting his contrary conclusions.
  • The Ninth Circuit's opinion remanding the case allowed the Board to make its own determination.
Member Johnson dissented, holding that the Board majority's decision erred by:
  • Effectively holding that the NLRA requires employers to tolerate employees' use of profane and menacing outbursts as long as they:
    • are tenuously related to protected concerted activity;
    • are arguable provoked;
    • do not include express threats of physical violence; and
    • are in front of a relatively small audience.
  • Failing to apply the Ninth Circuit's opinion as the law of the case. The Ninth Circuit directed the Board to analyze whether, in light of its conclusion that Aguirre's conduct was obscene, belligerent and insubordinate, Aguirre lost the NLRA's protection under Atlantic Steel. Instead, the Board majority simply rejected the law of the case and the ALJ's credibility findings without engaging in the Standard Dry Wall Products (91 N.L.R.B. 544 (1950))'s preponderance of the evidence test, the only basis on which the findings could be reversed.
  • Not giving proper consideration in its objective test to Plaza's environment, where the use of profanity was not common and it was reasonable to terminate an employee for using it, especially when it was directed towards management. The majority opinion suggests that belligerent and obscene employee conduct is the norm.
  • Impeding employers' effective enforcement of their policies to prevent violations of other employment laws, such as to proscribe employee behavior that could be viewed as bullying, harassing or creating a hostile work environment.
  • Providing legal protection to employees who engage in profane and belligerent behavior provided it concerns working conditions, which inevitably will discourage employers from engaging in discussions with employees about working conditions at all.

Practical Implications

This decision vastly expands the extent that employees can engage in offensive conduct provided their behavior touches on arguably concerted activity related to terms and conditions of employment. The Board majority's interpretation of the Atlantic Steel test seems to allow almost any statements or behavior but express threats of physical violence in front of a large audience. Like other recent Board decisions applying the Atlantic Steel test, this decision highlights that the current Board majority likely will find:
  • An employee has not lost the NLRA's protections even though the employee engaged in conduct ordinarily justifying termination.
  • An employer that makes employment decisions to maintain decorum or compliance with state and federal labor and employment laws, particularly to punish employees for using obscene language and engaging in intimidating behavior may run afoul of the NLRA.
(see Legal Update, Employee's Offensive and Potentially Harassing Comments Are Protected under the NLRA: NLRB.)
Employers that terminate employees for using obscene language or intimidating behavior should copiously chronicle the employee's inappropriate actions in internal memos and NLRB position statements, and elicit witness testimony about it to reduce the chance that the Board, in later ULP proceedings, could reject related ALJ factual findings and conclusions when applying its "objective" test.