Why calling the boss a “f**king a**hole” may be protected activity

by Michael Haberman on July 10, 2014 · 4 comments


"My way or the highway" is not a good statement in terminations.

“My way or the highway” is not a good statement in terminations.

Most bosses would probably react negatively to being told he is a “f**cking a**hole” to his face. In my book that would probably be a good reason to terminate the employee’s employment. It is obvious he is not going to be a team player, he may not be trustworthy, and he is certainly not going to be the most productive employee, so it would make sense to most owners to remove the employee from the job. Unfortunately in this case the National Labor Relations Board said “NO.”

Facts of the case

This case dealt with an employee, Nick Aguirre, of the Plaza Auto Center. According to Maria Greco Danaher of Ogletree Deakins, here are the facts of the case:

  • Aguirre was hired in August 2008 and had been an employee for less than 2 months.
  • During that time he did not find anything he liked about the company, including the pay, the breaks and the company policies. He made this clear to other employees. (Makes me wonder why he continued to work there)
  • On October 28th of that year he was called into the office for a meeting with the owner and a couple of sales managers.
  • The owner told Aguirre he was being too negative, asking to many questions, and he should not be complaining about pay. Plaza, the owner, told Aguirre that if he didn’t trust him he should not be working there.
  • At this point Aguirre lost his cool jumped up, called Plaza a “f**king crook” and an “a**hole” and that no one liked him. He pushed his chair and told Plaza if he fired him he would “regret it.”

As you might expect, Plaza fired him. He also felt threatened and insulted. And also as you might expect Aguirre filed a lawsuit. (I wonder who gave him the advice to file with the National Labor Relations Board.)

The results

  • The first judge (ALJ) to hear this decided that indeed Plaza had violated the National Labor Relations Act in terminating Aguirre for complaining about pay and working conditions. BUT, the ALJ said that Aguirre’s profanity and aggressive behavior eliminated any protection he might have under the NLRA.
  • The Acting General Counsel for the NLRB appealed the case to the full Board which said that Aguirre’s behavior wasn’t all that bad and they said he was protected.
  • Plaza Auto then appealed the case to the 9th U.S. Circuit Court of Appeals. They said that there were inconsistencies in the Board overturning the ALJ’s decision and they sent the case back to the NLRB to be reviewed.
  • The NLRB looked at the case again and did agree that Aguirre was indeed obscene but nothing in his behavior would cause him to lose the protection of the NLRA. They said that he was not threatening, he did not hit anyone, had never displayed any aggressive behavior in his two months of employment and that his pushing the chair aside was a result of the small office. Also his threat of “you will regret this” was clearly meant to imply a lawsuit and not physical violence. Thus the firing was illegal.

According to attorney Danaher the result of this case for Plaza was:

“…was immediate reinstatement of Aguirre with back pay and benefits paid to him, along with reimbursement for any “adverse tax consequences” of that repayment; Aguirre’s personnel file was to be cleaned of any reference to his firing, and the company we required to post a Notice which requires a link and a QR code to the Board’s full decision, along with statements related to employees’ right to form a union and engage in activities protected by the NLRA.”

Guidance

Danaher points out that all employers need to be very guarded in taking action against employees who complain about working conditions, even if they do so using obscenities and threats. She also pointed out that employers can be accused “provocation” if they say to the employee “If you don’t like it there is the door” or “My way or the highway” type of statement. Danaher suggests you hear the employee out and stay away from those statements. I know this is tough to hear. Most of us would have similar reactions to Plaza. But in the long run it has cost a lot of money in attorney’s fees and has taken 6 years to settle. Plus, imagine that first day that Aguirre came back. It would have been much better to let him have his say. Eventually he would have figured out he doesn’t belong.   Image courtesy of franky242 / FreeDigitalPhotos.net


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{ 4 comments… read them below or add one }

Sherry Gray July 10, 2014 at 8:27 am

Was this in an employment at will state? If not, what affect do you think it would’ve had on the decision and if so, why did it not have any affect?

Reply

Michael Haberman July 16, 2014 at 11:16 am

Sherry, it doesn’t make any difference whether this is and EAW state. EAW does not allow you to fire people in violation of federal law. This was ruled to be a violation of the National Labor Relations Act and thus impermissible.

Reply

Greg July 10, 2014 at 10:24 am

In the 9th circuit I would expect this type of ‘bizarre’ ruling. Simply unbeleivable from an HR perspective. That being said, all HR practicioners should coach and counsel their leadership PRIOR to any termination meetings to aleviate the emotions from taking over. Regardless of how the Manager feels, they must stay on task and that is where HR can help prevent, to the extent possible, outcomes like this. This employee now has a built in retaliation claim if anything is done to him for any reason. Valid or not, it’s going to continue to cost this company money, not to mention the impact on morale and productivity.

Reply

Michael Haberman July 16, 2014 at 11:14 am

Greg, you are spot on with your comment in how HR can help keep managers on task. Thanks.

Reply

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