By Judy Greenwald, Crain News Service
YUMA, Ariz. (June 6, 2014) — The National Labor Relations Board (NLRB) has ordered the reinstatement of a car salesman who was fired after he cursed his employer and called him “stupid.”
The NLRB held that the salesman was still protected under the National Labor Relations Act (NLRA).
Nick Aguirre was hired as a car salesman at Plaza Auto Center Inc. in Yuma in August 2008, according to the NLRB ruling in Plaza Auto Center Inc. and Nick Aguirre, which was issued May 28 and publicized this week.
Mr. Aguirre expressed concern about the dealership's policies concerning breaks, restroom facilities and compensation, according to the ruling. For instance, in one case he had expected a commission check for selling a car of between $1,000 and $2,000 yet only received $150 in pay.
In October 2008, a meeting was held in an office between Mr. Aguirre, two sales managers and the dealership's owner, Tony Plaza. In response to his complaints, Mr. Aguirre was told by Mr. Plaza that if he did not trust him, he need not work there.
“At that point, Aguirre lost his temper and in a raised voice started berating Mr. Plaza,” using foul language, according to the ruling. After the outburst, Mr. Plaza fired Mr. Aguirre.
An administrative law judge subsequently ruled that Mr. Aguirre had lost the NLRA's protection by his “belligerent” behavior. The NLRB then overturned that ruling. It was appealed to the 9th U.S. Circuit Court of Appeals in San Francisco, which held that the board had erred and asked the NRLB to consider whether Mr. Aguirre's outburst caused him to forfeit the board's protection.
Conduct ruled neither menacing nor belligerent
In a 2-1 ruling, an NLRB panel said Mr. Aguirre was still entitled to the act's protection. The majority ruling said Mr. Aguirre had not engaged in “menacing, physically aggressive or belligerent conduct.”
“Aguirre did not hit, touch, or attempt to hit or touch Plaza in any way after uttering the remarks,” said the ruling. The panel held Mr. Aguirre is still entitled to the act's protection given the subject matter of the meeting, which concerned key working conditions, and that it was a private outburst that occurred in a manager's office away from other employees, said the ruling.
The board also said that Mr. Plaza had “engaged in extremely provocative acts.” The case's facts “persuade us that Aguirre's outburst would not have occurred but for the Respondent's provocation, which included threats of discharge,” said the ruling.
“It was a spontaneous reaction to the Respondent's serious, unlawful provocations by an employee who had never previously engaged in similar misconduct,” said the ruling in ordering Mr. Aguirre's reinstatement.
The minority ruling held that the other board members' 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 like Nick Aguirre 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 overt physical threats.”
This report appeared on the website of Crain's Business Insurance magazine, a Chicago-based sister publication of Tire Business.