May 30, 2014
According to the National Labor Relations Board website, the Board “protects the rights of most private-sector employees to join together, with or without a union, to improve their wages and working conditions.” In practice, the Board does not always adhere to this idealistic view of its purpose.
Consider the following facts. A local used car dealership does what it can to sell cars. It displays vehicles on its lot and periodically holds “tent sales” in the parking lots of other local businesses. The dealership employs a small non-union sales force, which it pays on a straight commission basis.
In August 2008, newly hired salesperson Nick immediately began questioning the dealership’s policies regarding breaks, restroom facilities and compensation. For example, at a sales meeting in his second week on the job Nick asked about restroom and meal breaks during tent sales. One of his supervisors responded by saying “you’re always on break buddy . . . you just wait for customers all day.” Over the next two months Nick complained about the amount of commissions and the lack of a guarantee of at least minimum wage. Among other things he contacted the state wage and hour enforcement agency, which told him that “salespeople were entitled to the minimum wage as a draw against commissions”. Nick told other employees about this. He also spoke to the office manager, who told him he could always work elsewhere.
Eventually, dealership owner Tony had a meeting with Nick. Although Tony “had no intention of firing” Nick when the meeting started, he changed his mind based on Nick’s behavior in the meeting. Tony told Nick that the negativity needed to stop and that he should not complain about pay. Nick persisted; he complained about the minimum wage issue and told Tony he did not trust the dealership’s calculation of commissions. Tony twice reminded him that he could work elsewhere if he did not trust the dealership.
“At that point, [Nick] lost his temper and in a raised voice started berating [Tony], calling him a [bleep bleep], a [bleep bleep], and [a bleep]. [Nick] also told [Tony] that he was stupid, nobody liked him, and everyone talked about him behind his back. During the outburst, [Nick] stood up in the small office, pushed his chair aside, and told [Tony] that if [Tony] fired him, [Tony] would regret it.”
Not surprisingly, Tony fired Nick. The date was October 28, 2008.
Five and a half years later, the Board this week issued its opinion in Plaza Auto Center, Inc. and Nick Aguirre. The matter, which had been reviewed once by the Ninth Circuit Court of Appeals, was back before the NLRB for the express purpose of determining whether Nick’s outburst against Tony during protected activity caused him to lose the protection of the National Labor Relations Act.
To address this question, the Board applied the test articulated in its Atlantic Steel (1979) decision. The test calls for four factors to be balanced in determining whether conduct that otherwise would be protected by the NLRA loses that protection because of the “opprobrious nature” of the conduct. The factors include: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst; and (4) employer provocation of the outburst by unfair labor practices.
The Ninth Circuit had instructed the Board to do two things: determine the nature of Nick’s outburst and to then rebalance the four Atlantic Steel factors. Focusing on the nature of the outburst, the Board said the outburst “involved obscene and denigrating remarks that constituted insubordination” but did not constitute “menacing, physically aggressive, or belligerent conduct.”
Although the nature of the outburst factor weighed against statutory protection, in rebalancing all of the factors the Board concluded that Nick’s conduct did not result in the loss of NLRA protection. On the one hand, the Board said that Nick’s “obscene and denigrating remarks must be given considerable weight because [Nick] targeted [Tony] personally, uttered his obscene and insulting remarks during a face-to-face meeting with [Tony], and used profanity repeatedly.” However, the Board had concluded that the outburst was provoked and weighted that conclusion more heavily.
As a result, the Board held that the dealership had discharged Nick because of “protected concerted activity” in violation of Section 8(a)(1) of the Act. Further, the Board ordered the dealership to offer immediate reinstatement, with seniority, and to pay Nick “for any loss of earnings and other benefits suffered as a result of the discrimination against him.”
The Bullard Edge finds the decision disturbing on a number of levels. I consulted my colleague Dan Rowan for some perspective.
First, this is yet another example of the Board being agenda driven rather than merits driven. The Board acknowledged that going into the meeting Tony did not intend to terminate Nick for his protected activity, but changed his mind based on Nick’s obscene conduct in the meeting. Nevertheless, the Board excused all of that because Nick was upset about work.
Second, the dealership made a mistake in telling Nick at every turn that he should not complain about pay. This is the kind of comment that the Board almost always finds unlawful. In this case, the Board cited it as one of the reasons for concluding that Nick was “provoked” into his outburst. Discouraging employees from discussing their pay or making negative comments about their pay to management might feel good, but is risky.
Third, even though this was one employee complaining about his own pay it was still protected, concerted activity. The Board’s position is that because compensation issues affect all employees, even a single employee on his or her own is engaged in protected activity when complaining about pay.
Fourth, the employer here was non-union. This case is yet another example of the NLRB’s expansive view of its jurisdiction, beyond unionized workplaces and union organizing activities. Non-union employers should be aware of this.
The Bullard Edge
Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it. Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be.
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