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The core protection afforded to employees under the National Labor Relations Act is the right to engage in “protected concerted activity.” NLRB case law is full of examples of employee outbursts directed at management concerning workplace issues being deemed “protected concerted activity,” and thus the employer’s discipline or discharge of the employee for that outburst being found unlawful. An employer on the losing end of one of those cases before the Board recently took its case to the Ninth Circuit Court of Appeals.
In Plaza Auto Center, Inc. v. NLRB, the typically NLRB-friendly appeals court refused to affirm the NLRB’s finding of an unlawful termination, and instead remanded the case back to the NLRB. The court found that the Board’s conclusion that a used car salesman did not lose the protection of the Act as a result of his obscenity-laced confrontation with the owner of the dealership over his sales commissions was “at odds with its own precedents, which recognize that an employee’s offensive and personally denigrating remarks alone can result in loss of protection.” The court specifically took issue with the Board’s apparent conclusion that an employee’s outburst will only be deemed to be unprotected if it is accompanied by physical violence or a threat of physical violence. In light of the Board’s “inconsistent logic,” the court instructed the Board, on remand, to reevaluate the case based on its own precedents, which have held that “obscene, degrading, and insubordinate comments may weigh in favor of lost protection even absent a threat of physical harm.”
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