03.13.2012
Ninth Circuit Rejects NLRB's Order Reinstating Insubordinate Employee

The National Labor Relations Board (NLRB) has developed a test for determining whether an employee who is engaged in activities which are protected by the National Labor Relations Act loses that protection by engaging in overly confrontational and inappropriate conduct toward his or employer. In the recent case of Plaza Auto Center v. NLRB, the Ninth Circuit Court of Appeals held that the NLRB misapplied this test in ordering an employee who engaged in such conduct to be reinstated to his job as a used car salesman in Yuma, Arizona.

The employee, Nick Aguirre, complained to management during his brief two month tenure at the used car dealership that he could not use a restroom or take meals during three day weekend “tent sales,” and that he was shortchanged a commission on a sale he made. He also complained at a group meeting attended by managers and salespeople that it would be unfair to deduct the repair costs of a damaged vehicle from the commissions of those salespeople who had no access to it. He later asked to be paid a “minimum wage draw,” and was told by a manager that he should work elsewhere if that is what he wanted.

Aguirre was terminated at the conclusion of a meeting of three managers, including owner Tony Plaza, on October 28, 2008 after he inquired about vehicle costs in connection with the calculation of his commission. Plaza told Aguirre that he was “talking a lot of negative stuff” that would negatively affect the sales force and was asking too many questions, to which Aguirre responded that he did have questions about his pay and commissions. Plaza told him that he should not be complaining about his pay and that if he did not trust the company he shouldn’t work there -- at which point Aguirre lost his temper and said to Plaza in a raised voice that he was a “f’ing mother f’ing,” a “f’ing crook,” and an a--hole.” Aguirre also told Plaza that he was stupid, that nobody liked him, and that he would regret firing him, whereupon he left.

In determining whether an employee loses their protection under the statute in these circumstances, the NLRB looks into the place and subject matter of the discussion as well as the nature of the employee’s outburst and whether it was provoked by the employer’s unfair labor practice. The Board found that Aguirre did not lose the protection of the Act based on the application of all four factors. With respect to the third factor, the Board stated that although Aguirre’s conduct was personally denigrating, it was not accompanied by actual or threatened physical harm and therefore did not justify his discharge. However, the Ninth Circuit disagreed and remanded the case to the NLRB to reconsider its ruling, in light of the fact that obscene, degrading, and insubordinate comments may result in the loss of protection even in the absence of a threat of physical harm.

This case is a good reminder that although the law provides a great degree of protection to employees who complain of wages, hours and working conditions on behalf of themselves and co-workers, there is a limit to the kind of behavior they may legitimately engage in when making such complaints.

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