By: Michael J. Rybicki, Esq.
Employers frequently express extreme frustration and bewilderment with respect to the Board and its decisions. We can only imagine how the owners of Plaza Auto Center, Inc. in Yuma, Arizona must feel following the Board’s Supplemental Decision in Plaza Auto Center, Inc., 360 NLRB No. 117, 199 LRRM 1523 (May 28, 2014), directing reinstatement and back pay for an employee who, while engaging in protected concerted activity, called the owner a “f__ing crook” and an “a___hole” (in the interest of decorum, we’ve declined to reprint the offensive language), told the owner he would regret it if the employee was fired, and who engaged in other conduct that a federal court of appeals concluded called for a remand to the Board to determine whether the employee’s outburst cost him the protection of the Act (Plaza Auto Center, Inc. v. NLRB, 664 F.3d 286 (9th Cir. 2011).
A Board majority (Chairman Pearce and Member Hirozawa) found that the outburst and associated conduct did not deprive the employee of the Act’s protections. The outrageousness of this decision is clear from the dissent of Member Johnson, whose comments also give a fair flavor of the facts in the case:
[The Majority’s] approach implies that such misbehavior is normative, or at least that the Act mandates tolerance of it whenever profane or menacing outbursts are somehow connected to protected concerted activity. I disagree. By this standard employees … will be permitted to curse, denigrate, and defy their managers with impunity during the course of otherwise protected activity, provided that they do so in front of a relatively small audience, can point to some provocation, and do not make any overt threats. In my view, few, if any, employers would countenance such behavior in the absence of protected activity. I do not believe they must act so differently when the confrontation involves protected activity.
In reaching its decision, the Majority reversed certain critical credibility findings by the administrative law judge, which is highly unusual. The Majority also notes that the employee had no history of similar misconduct. At the time of his termination, however, the employee had been employed for only two months.