Employee’s Profanity Does Not Cost Him NLRA Protection

On May 28, 2014, the National Labor Relations Board (NLRB) ruled that shouting profanities at a supervisor could be protected activity under the National Labor Relations Act (NLRA). Plaza Auto Center, Inc. and Nick Aguirre (NLRB 2014). As such, the NLRB found the employer’s decision to terminate the employee was unlawful and ordered the employer to reinstate the employee with full back pay.

The employer argued that the employee who was a salesperson lost any protection by calling his boss, owner Tony Plaza, an “f’ng crook,” an “a-hole,” and using the f-word in an aggressive manner repeatedly. This outburst was preceded by a discussion between the employee and Plaza wherein Plaza told the employee that his negativity about the break policy, restroom facilities, and compensation was affecting employee morale at the auto dealership. Plaza further stated that the employee could find another job if he did not trust him.

Under the NLRB’s previous decision in Atlantic Steel Co. v. Chastain (NLRB 1979), profane outbursts such as this could prevent employee complaints about wages, hours, or working conditions from receiving NLRA protection.  However, the NLRB ruled in this case that the employee was not sufficiently menacing or belligerent to make his activity unprotected. The NLRB held that the fact that the outburst took place in Mr. Plaza’s office and not in front of customers or other employees made it less disruptive.  Board Member Harry Johnson dissented from the majority opinion, stating, “Employees do not typically curse each other and their superiors like characters in a Scorsese film.”

This case serves as another example of how the NLRB is actively pursuing charges against non-unionized companies and bending applicable legal standards to help employees receive damages. MSEC will continue to monitor similar decisions.