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On-the-Job Tirades

By Kari Santos | Jul. 2, 2012

News

Expert Advice

Jul. 2, 2012

On-the-Job Tirades

When an employee curses at the boss, it could lead to termination—unless the outburst is protected speech.

Nick Aguirre did not like his employer's compensation policies. Starting on day one of his job at a used car dealership, he complained about various work policies and practices to fellow employees and to his two managers. After two months, during a meeting about work with his managers and the owner of the business, Aguirre raised his voice and proceeded to call the owner a "fucking crook" and an "asshole." He added that the owner was stupid, that no one liked him, and that everyone talked behind his back. Aguirre then stood up, pushed his chair aside, and said that if he got fired, the owner would regret it.

News flash: Aguirre was fired. But true to form, he didn't walk away quietly. He filed an unfair labor practice charge with the National Labor Relations Board (NLRB), contending that his speech was protected under the National Labor Relations Act because he had been complaining about working conditions.

After a hearing before an administrative law judge (ALJ), the NLRB determined that Aguirre's tirade was indeed protected speech, that the termination was unlawful, and that Aguirre was entitled to reinstatement and back pay. The employer sought review in the Ninth Circuit (Plaza Auto Center, Inc. v. NLRB, 664 F.3d 286 (9th Cir. 2011)), which accepted the labor board's view that there were competing interests in the case. On the employee's side was Aguirre's right to complain about wages, hours, and working conditions. However, the employer and other employees also had a valid interest in maintaining order in the workplace. The court agreed that the NLRB was correct to resolve the case by balancing four key factors set forth in prior cases (and outlined below). It's opinion is instructive for attorneys who handle disputes over terminations stemming from employee outbursts in the workplace.

Place of Discussion. The first factor involves where the outburst occurred. The appellate court agreed with the NLRB that the location of the discussion - a private office away from the workplace and other rank-and-file employees - weighed in favor of the employee. The fact that the outburst caused no disruption to order or discipline at the car dealership supported the claim that Aguirre's speech was protected.

Subject Matter. The court also noted that the subject matter of the conversation - how Aguirre was being paid and whether he was being undercompensated - also weighed in favor of protection. Even the employer had to concede that Aguirre's objections to working conditions and compensation policies were entitled to statutory protection.

Provocation. The Ninth Circuit concluded that there was another basis for holding that the outburst was protected speech: It was provoked by the employer's unfair labor practices. On this point, the court observed that Aguirre's outburst occurred at the moment the employer had censured Aguirre's protected complaints by calling them "negative" and by telling him that if he did not like the employer's policies, he could work for someone else.

Nature of Outburst. This is where the rubber met the road for Aguirre. The ALJ had described his confrontation as belligerent, repeated, extensive, derogatory, personal, obscene, and accompanied by menacing conduct and language. The NLRB characterized the tirade as a single, brief outburst "unaccompanied by insubordination, physical contact, threatening gestures, or threat of physical harm." And contrary to the administrative law judge, the NLRB concluded that Aguirre's conduct was not outside acceptable limits, noting that the owner also used obscene language in dealing with employees.

However, the Ninth Circuit was unpersuaded by the NLRB's characterization. The court did not accept the board's analysis to the extent it would require physical touching or the threat of it in order to forfeit statutory protection. Rather than expound on the effect such a rule would have on etiquette in America's workplaces, the court judiciously noted that the NLRB's holding was inconsistent with its own precedent, and with prior judicial decisions to the effect that obscene and offensive outbursts similar to Aguirre's were unprotected. The court also cited a precedent from the D.C. Circuit in which the court refused to enforce an NLRB order protecting an obscene employee tirade. (See Felix Industries, Inc. v. NLRB, 251 F.3d 1051 (D.C. Cir. 2001).)

But the Ninth Circuit didn't completely close the book. It remanded the case to the labor board to "properly balance" the pertinent factors and re-examine the ALJ's decision, with instructions to either accept the ALJ's determination that Aguirre was belligerent, or state with a "reasoned explanation" why the ALJ's credibility determination, based on live testimony, should not be accepted.

The lesson here is that even if the subject matter of disputed speech is protected, the manner in which an employee delivers his opinion about working conditions is important. The Ninth Circuit made clear that even in today's workplace, decorum counts.

Alan S. Levins is a shareholder at Littler Mendelson in San Francisco, where he specializes in labor and employment matters.

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Kari Santos

Daily Journal Staff Writer

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