Why would the NLRB protect employee belligerence?
According to a NLRB ruling on May 28, 2014, an unhappy employee who complained to fellow coworkers about his pay, and then yelled at and called his employer obscene names during a corrective coaching meeting, was actually engaging in protected activity. The employee’s subsequent firing by the employer was therefore unlawful. The case is Plaza Auto Center, Inc. (360 NLRB No.117), and has been going on for 5 years.
The story goes like this. In August 2008, Nick Aguirre (employee) was hired as a used-car salesman by Tony Plaza (employer), of Plaza Auto Center. Very quickly, Aguirre became an unhappy employee, believing he was mistreated and improperly paid.
In October 2008, Plaza sat down with Aguirre and told him that he knew Aguirre was talking a “lot of negative stuff” with his fellow salesmen and should not be complaining about pay. Plaza told him that he needed to follow policy and procedure, and twice said that if he did not trust the company, he did not need to work there.
At that point, Aguirre reportedly lost his temper and started yelling at Plaza, used vulgar language and names, and that no one liked Plaza because they all talked about him behind his back. Plaza then fired Aguirre.
The unlawful dismissal case has been bouncing around the courts ever since. It has been dismissed by at least one judge, who ruled that while the place of the discussion, the subject matter of the discussion, and the invitations by the employer for Aguirre to quit constituted unfair labor practices, Aguirre’s behavior was belligerent and as such the termination did not violate law.
HOWEVER, the NLRB has ruled twice now that Aguirre’s conduct was not outside the realm of acceptable conduct, and that it was a single brief outburst provoked by Plaza “unaccompanied by insubordination, physical contact, threatening gestures or threat of physical harm.” The Board has ruled the discharge to be an unfair labor practice.
Plaza has appealed to the Ninth Circuit Court of Appeals, and it is a matter of time to see if the Board’s ruling will stand or not.
This is not the only story of scary decisions by the Board. In 2013, both Dish Network Corp. (359 NLRB 108) and Design Technology Group (359 NLRB 96) came under scrutiny for their policies.
The NLRB targeted Dish for a policy prohibiting employees from “making disparaging or defamatory comments” about the company, its employees, officers, directors, customers, partners or its products and services effectively chilled employees from exercising their Section 7 rights. The Board also concluded that a policy prohibiting employees from “engaging in negative electronic discussion” during company time effectively banned union activities during breaks and other non-working hours at the workplace, and thus violated their Section 7 rights.
As for Design, a group of employees who discussed a supervisor on Facebook and complained about the company’s lack of response to their complaints were fired once the posts were seen by a manager. The NLRB concluded that the employees were engaged in protected concerted activity and that the discharges were unlawful.
The lesson the NLRB is teaching us? If they can interpret something as “protected activity,” they WILL.
Our recommendation? Have your policies evaluated by an expert in employment law to make sure that your language and procedures pass the NLRB test.
CEDR offers a complimentary evaluation of your handbook. Simply email it to email@example.com or fax to 909.752.4347 and mention this article. There’s no obligation or risk, it’s just priceless information.
But even if not by us, have your policies and your handbook checked to make sure you don’t have any red flags.
It could mean the difference between a couple hours of work and many thousands of dollars fighting against the NLRB.