Picture it: In a meeting with his supervisor concerning commission rates and break times, a used car salesman loses it, calling the supervisor “f@#$ing mother f@#$,” a “f@#$ing crook” and an “a@#hole.” Then he warns the boss that if he’s fired, the boss would “regret it.” You would think this is a slam dunk, right? The salesman’s out of there. And so he was fired, before the National Labor Relations Board heard the case.
The NLRB recently decided that the salesman’s firing was unlawful — it violated federal labor laws that guarantee employees the right to discuss the terms and conditions of their employment. In an earlier hearing before an administrative law judge, Nick Aguirre was found to have negated his rights to discussing such issues on account of his belligerent, insubordinate behavior. An appeals court ruling supported that opinion, and the matter was remanded to the full NLRB for reconsideration.
Here’s a summary of the Board’s decision, culled from a 17-page report that’s more complicated than one would expect:
We conclude that affording the Act’s protection to Aguirre here serves the Act’s goal of protecting Section 7 rights without unduly impairing the Respondent’s interest in maintaining order and discipline in its establishment because the outburst was not witnessed by, and was not likely to be witnessed by, other employees. Thus, Aguirre’s outburst occurred in a closed-door meeting in a manager’s office away from the workplace; the Respondent chose the location of meeting in the manager’s office where the outburst occurred; and no employee overheard Aguirre’s obscene and disparaging remarks to the owner.
So, in other words, it is okay for an employee to be insubordinate, insulting and threatening to his/her boss, as long as they’re discussing workplace conditions and no other employees are within earshot?