The National Labor Relations Board (“NLRB”) enforces the National Labor Relations Act (“NLRA”) which, while dealing with a variety of union issues, also addresses non-union shops in the private sector and specifically protects the rights of most private sector employees to join together with or without a union to improve their wages and working conditions. The decision by the NLRB issued on May 28, 2014 in the case of Plaza Auto Center, Inc. and Nick Aguirre ruled that Nick Aguirre, a salesperson for the used car dealership was fired because of his protected concerted activity in violation of the NLRA and ordered immediate reinstatement of his employment with seniority and to pay him for any loss of earnings and other benefits suffered as a result of the firing. Nick was fired after he lost his temper in a meeting with his boss and began berating his boss calling him several swears, informing him that he was stupid, no one liked him, and everyone talked about him behind his back. Nick’s anger occurred as a result of his frustration about the dealership’s policies regarding breaks, rest room facilities, and commissions which he believed were not enough to pay them the basic minimum wage required under the law. Nick’s boss told him that such negativity needed to stop and told Nick several times that he should stop complaining about his pay.
Even though this was the case of only one employee complaining about his own pay, the Board’s position was that because the compensation issues affect all employees, even a single employee on his/her own is engaged in a protective activity when complaining about pay. Therefore, it would be prudent for management, even on the heels of an employee’s insubordinate and unprofessional outburst, to consider whether or not the outburst might be considered as provoked because of employment terms. If it is, the employer should speak with employment counsel to navigate through the situation. For example, while the Board in this case found that Nick was engaged in a protected activity, if it was found that Nick really just did not like the personality of his boss and because of that engaged in a tirade in which he told off his boss, the Board might not have found that to be a protected activity. Likewise, if Nick had, because he did not like his boss, knowingly spread false rumors about his boss’s infidelity, the Board would most likely find that was not a protected activity and therefore find that firing Nick would be justified. The NLRB clearly in the last few years has gotten more involved in the private sector non-union employer/employee relations and as such management of non-union shops should be cognizant of the NLRB’s eagerness to address non-union private employment relation issues.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].