The National Labor Relations Board (NLRB) long has held that an employee can lose the National Labor Relations Act’s (NLRA’s) protection if he or she engages in profane outbursts. Although the NLRB has granted employees “some leeway” for inappropriate conduct “in the heat of the moment,” the NLRB consistently has held that extreme or threatening conduct forfeits NLRA protections. The NLRB, however, has never espoused a bright-line rule that delineates inappropriate but still protected conduct versus conduct severe enough to fall outside the NLRA’s protection.
With its recent decision in Plaza Auto Center, Inc., 360 NLRB No. 117, the NLRB vastly expanded the boundaries of conduct that is inappropriate but still protected. Over a “vigorous” dissent, a 2-1 NLRB majority overturned an administrative law judge’s decision that an employee’s obscene and threating outburst was not protected by the NLRA. In the case, a non-union used car salesman approached his manager to complain about his wages. When the manager responded that he could find another job if he did not like the employer’s policies, the employee began shouting personally reprehensible profanities, including such phrases as “a—hole” and other similar pejorative terms. The employee then stood up, pushed his chair aside, and told the manager that “he would regret it” if he fired the employee. The manager subsequently terminated the employee.
In reaching its decision, the NLRB analyzed four factors: (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 an employer’s unfair labor practice. Ultimately, the board held that the employee’s conduct fell short of the type of “belligerent,” “menacing” or “physically aggressive” actions that can cause an employee to lose the NLRA’s protection. In so doing, the majority reasoned that:
- The employee’s statement that his manager would “regret it” was not an express threat of physical violence, but was ambiguous and could have been a warning about the legal consequences of firing the employee.
- The employee’s pushing of the chair was not physically aggressive because the employee needed to move the chair to leave the small meeting room.
- The employee met with his manager to complain about the terms and conditions of his employment (i.e., his pay).
- The employer’s interest in maintaining order in the workplace was lowered because the meeting took place behind closed doors and away from other employees.
- The employer likely provoked the outburst by threatening to fire the employee.
This decision represents another example of the current NLRB’s expansionist efforts into the non-union environment. As the dissent stated, the NLRB standard historically has called for “some leeway,” but the employee’s inappropriate conduct in this case far exceeded that level. After this decision, employers – both unionized and non-unionized – must be cognizant that behavior that would be viewed as “beyond the pale” in any other circumstance still may not cause an employee to lose the NLRA’s protections.
This decision is a reminder that employers must act carefully when determining whether to discharge an employee for obscene or mildly to moderately threatening conduct if the conduct is related to otherwise protected, concerted activity covered by the NLRA. Moreover, the decision reinforces the need for employers to stay abreast of NLRB decisions given the trend of expansionist decisions, which is expected to continue unabated for the foreseeable future.
For questions regarding this decision or assistance in addressing employee conduct that may rise to the level of protected concerted activity, please reach out to your McGuireWoods contact or a member of the firm’s traditional labor group.