Employee Angry Outbursts

Humboldt County employers will be interested to know about a recent decision by the Ninth Circuit Court of Appeals which helps clarify when termination is authorized based on an angry outburst.

The case, Plaza Auto Center, Inc. v. N.L.R.B. (9th Cir. 2011) 664 F.3d 286, involved an employee (Aguirre) who worked at a used car dealership in Arizona (though the decision is binding on California courts and employers as well).  From the beginning of his employment, Aguirre was unhappy with that dealership's compensation policies and practices.  He complained to his supervisors and fellow employees.  Two months into his employment, in a private meeting, Aguirre called the owner a “f***ing crook,” an “a**hole”  “stupid,” and stated no one liked the owner and everyone talked behind his back.  Aguirre then stood up, pushed his chair back, and said that if he got fired, the dealership owner would regret it.

The case came before the National Labor Relations Board (NLRB) first.  While finding that Aguirre had engaged in physically threatening acts, the administrative law judge decided that the behavior was protected, the determination was unlawful, and the employee was to be awarded back pay and reinstated in his position.

The dealership appealed the NLRB decision to the Ninth Circuit.  The Court of Appeals issued its decision in December 2011, citing several factors (the "Atlantic Steel" factors) in determining whether speech is protected in such circumstances: (1) Place of the Discussion; (2) Subject Matter of the Discussion; (3) Provocation by Unfair Labor Practices; (4) Nature of the Outburst.

In this case, the place of the discussion was appropriate as it was a private office away from other employees.  The court also found that factor two was in the employee's favor since the outburst had to do with the employee's pay rate and whether he was under compensated.  The employee was also sufficiently provoked because the dealership owner told him that he could simply “work somewhere else” if he was unhappy with their policies and the policies were in fact unfair.

However the final factor, the nature of his outburst, is where the employee lost his advantage.  His demeanor was belligerent, derogatory, personal obscene, and menacing.  While the NLRB had held that physical harm or the threat of physical harm was necessary in order for the employee to forfeit his protection, the Ninth Circuit thought that standard was too high and that protection had been forfeited in this case.  The court remanded the case to the NLRB to properly balance the factors and either that the belligerence findings were correct and the termination legal, or reject the judge’s findings of belligerence and issue a decision in favor of the employee.

The NLRB has not yet issued its decision, but the guidance for employers is clear: cursing and insults are not enough to remove an employee’s protection for speech about unfair workplace policies.  But the guidance for employees is also clear: even when complaining about unjust or unlawful policies, a graceful delivery is important.