Soon after being hired, a salesman at a non-union automobile dealership started questioning other employees and managers about the company’s break and compensation policies. The owner called him into his office, told him that he was asking too many questions, and warned him that his negative comments would adversely affect the other employees. The employee said that he had questions regarding commissions and employees’ entitlement to the minimum wage. The owner warned the employee to stop complaining and told him that if he didn’t trust the company he could
work elsewhere. At this point, the employee “lost it” and began loudly cursing at the owner multiple times. Among other things, the employee called the owner a “f***ing mother f***er,” a “f***ing crook,” an “a** h***” and stupid. He was fired on the spot.
While conceding that the employee’s vulgar and incendiary language was entitled to “considerable weight” against the employee – and could in some circumstances support a discharge because the employee “targeted … [the owner] personally, uttered his obscene and insulting remarks during a face-to-face meeting with … [the owner] and used profanity repeatedly” – the National Labor Relations Board (“NLRB”) nevertheless concluded in Plaza Auto Center, Inc., 360 NLRB No. 117 (2014) that the employee’s conduct was protected under the National Labor Relations Act because:
- the attack was verbal rather than physical;
- the owner was never in physical danger;
- it occurred behind closed doors, away from the other employees, in the owner’s office; and
- the conversation was about commissions, breaks and wages, which are protected subjects.
The deciding factor, the NLRB suggested, in ruling that the discharge violated federal labor law, was its belief that the employee’s outburst would not have occurred in the first place but for the owner’s provocation, which included a threat to discharge him.