While many employees wish to tell off their bosses from time to time, the NLRB has now given legal cover to employees who go through with it – provided the employee does so under the right circumstances. In Plaza Auto Center, Inc. v. Aguirre, 360 NLRB No. 117 (2014), the NLRB decided 2-1 that an employee’s profane tired against his boss was protected activity under the National Labor Relations Act.

Nick Aguirre was a salesperson for Plaza Auto Center, Inc. in 2008.  During his tenure at Plaza, Aguirre repeatedly questioned whether Plaza was correctly calculating commissions and paying its salespersons the proper minimum wage. Finally, in a one-on-one meeting with Plaza’s owner, the issues boiled over. As the NLRB decision describes it:

Plaza [the owner] told Aguirre that he had to follow the Respondent’s policies and procedures … and that he should not be complaining about his pay.  Plaza twice told Aguirre that if he did not trust the Respondent, he need not work there. At that point, Aguirre lost his temper and in a raised voice started berating Plaza, calling him a “f------ mother f------,” a “f------ crook,” and an “a--hole.”  Aguirre also told Plaza that he was stupid, nobody liked him, and everyone talked about him behind his back. During the outburst, Aguirre stood up in the small office, pushed his chair aside, and told Plaza that if Plaza fired him, Plaza would regret it. Plaza then fired Aguirre.

Incredulously, this case went before an ALJ, twice to the NLRB, and once before the Ninth Circuit. The ALJ initially found that Aguirre’s outburst was “belligerent,” “menacing,” and “at least physically aggressive” and therefore Aguirre lost his statutory protection under the National Labor Relations Act. The NLRB, however, found in its initial 2-1 decision that Aguirre’s conduct was protected. The Ninth Circuit took up the case, and in Plaza Auto Center, Inc. v. NLRB, 664 F.3d 286 (9th Cir. 2011) agreed with much of the NRLB’s analysis, but remanded on one of the factors.

Both of the NLRB’s decisions applied the four-part test in Atlantic Steel Co., 245 NLRB 914 (1979) to determine whether Aguirre’s conduct was protected. Those factors are (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by the employer’s unfair labor practices. The Ninth Circuit agreed with the NLRB on all but the nature-of-the-outburst factor.

On remand, the NLRB found that while the nature-of-the-outburst factor weighed against Aguirre, the remaining three factors supported Aguirre’s conduct being protected by the Act. Specifically, the NLRB observed that the outburst took place in a closed-door meeting with the manager, away from the workplace; that the subject matter of the outburst concerned Aguirre’s protected conduct; and finally that the outburst “was a spontaneous reaction to the Respondent’s serious, unlawful provocations by an employee who had never previously engaged in similar misconduct.” The Board also found that “Aguirre did not hit, touch, or attempt to hit or touch Plaza in any way after uttering the remarks.”

The dissenting Board Member issued what he called a “vigorous dissent,” stating that:

[The majority’s] approach implies that such misbehavior is normative, or at least that the Act mandates tolerance of it whenever profane and menacing outbursts are somehow connected to protected concerted activity. … By this standard, employees like Nick Aguirre will be permitted to curse, denigrate, and defy their managers with impunity during the course of otherwise protected activity, provided that they do so in front of a relatively small audience, can point to some provocation, and do not make overt physical threats.

Nevertheless, the 2-1 decision currently stands. This case demonstrates that employers need to tread lightly when employees bring up issues concerning wages, working conditions, or other issues that may be protected under the NLRA. When dealing with such issues, employers should make sure that they have more than one person in the room and the issues are discussed in an even tone. Even then, employees now have legal cover for conduct that stops short of overt threats or violence.