Thursday, August 7, 2014

Scrub Your Mouth Out With Soap! The NLRB Chastises Boss for Firing Foul-Mouthed Employee

Employers beware! That foul-mouthed employee hurling curse words at you may be exercising his rights under the National Labor Relations Act (NLRA), and firing him may land you in a world of trouble. The owner of a used car-dealership in Yuma, Arizona found this out the hard way. During a meeting with an employee, the employee called his boss a “f***ing mother *f***ing,” a “f***ing crook,” and an “a**hole.” Pushing a chair, the employee told the owner that nobody liked him and that he was stupid.

Unsurprisingly, the owner fired this employee. Perhaps also unsurprisingly, the employee sued the owner, alleging that he was fired for exercising rights protected by the NLRA. The employee alleged that his rights under Section 7 of the NLRA, which allows employees to air grievances against their employers and prevents employers from retaliating against them, were violated. The owner responded that the employee’s behavior was “menacing,” “belligerent,” and “physically aggressive.” The NLRA forbids employees from airing their grievances in this way.
The suit came before the National Labor Relations Board (the Board), and the Board sought to determine: 1) whether the employee was engaging in behavior protected by the NLRA, and whether he was fired for engaging in this activity; and 2) whether the employee’s behavior was “menacing,” “belligerent,” and “physically aggressive,” and therefore caused him to lose protection by the Act.

The Board determined that the employee was engaging in protected activity, and that he was fired for doing so. It found that the employee had met with the owner to discuss wages and working conditions. The owner, instead of listening to these grievances, instead threatened to fire the employee. The employee’s outburst was in response to his boss failing to consider the merits of his argument. The Board held that by failing to do this, and instead firing the employee for merely complaining, the owner had violated the employee’s rights under the NLRA.

The Board then determined that the employee’s behavior, while obscene and denigrating toward his boss, was not so menacing, belligerent, or physically aggressive that it caused him to lose protection of the Act. The Board noted that the NLRA “permits some leeway for impulsive behavior,” and that “disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses.” The Board held that the employee’s behavior did not unduly impair the owner’s ability to maintain order and discipline in the workplace because the outburst was not witnessed by other employees. As a result, the Board ordered the owner to reinstate the employee and pay him lost wages.

On the surface, this decision threatens an employer’s ability to impose discipline in the workplace. After all, if an employer cannot fire an employee who curses at him and calls him stupid, what can he fire him for? Digging deeper, however, the owner could have avoided these problems. Had the owner considered his employee’s grievances, and not fired him merely for complaining, none of these problems would have occurred. Categorically refusing to consider employee concerns over wages, hours, and working conditions puts an employer at risk of a lawsuit. If an employer considers these grievances, and then fires an employee for engaging in an outburst, the employer can impose discipline without violating his employee’s rights. Or, in the alternative, he could give his employee a bar of soap.