By Kelline R. Linton,
Last week, the NLRB ordered the reinstatement of an employee who was fired for cussing out his employer, ruling that the employer unlawfully discharged him because he did not lose the protection of the National Labor Relations Act (“NLRA”) during the profanity-laced outburst.
In Plaza Auto Center, Inc. and Nick Aguirre, 28-CA-022256, the employee of a used car dealership repeatedly questioned his employer’s policies regarding breaks, restroom facilities, and compensation. At each turn, the dealership told him that he should not complain about pay and could always work elsewhere. Eventually, the dealership’s owner met with the employee and told him that the negativity and complaints about pay needed to stop. At this meeting, the employee attempted to complain about pay before he lost his temper and berated the owner, calling him “a [bleep bleep], a [bleep bleep], and [a bleep].” He also told him that he was stupid, nobody liked him, and everyone talked about him behind his back. He then said that if the owner fired him, he would regret it. At this point, the owner fired the employee.
In its decision, the Board found that the employee’s outburst constituted insubordination and weighed against NLRA protection; however, the Board concluded that the outburst was provoked and that the dealership had discharged the employee because of protected concerted activity. Specifically, the Board found the dealership provoked the employee when it repeatedly told him not to complain about pay. This is the type of comment that the Board almost always finds unlawful.
So what does this mean? This decision does not prohibit an employer from terminating an employee for obscene conduct. However, employers should be mindful of the circumstances surrounding the obscene conduct, especially if the conduct occurs during protected activity.