Most HR pros and experienced managers are comfortable with terminations involving egregious insubordination, particularly if the company has standing policies or practices that direct employees to treat one another with mutual respect and professional decorum. Well heads up folks, because the NLRB believes you are probably wrong. And we had better pay attention.
It is well known that common sense is insufficiently common on the Board, and its decision in Plaza Auto Center, Inc. demonstrates this in spades. Here are the basic facts, and recall in reading that we are talking about a non-union employer.
Mr. Nick Aguirre was hired by Plaza Auto as a car salesman. Soon after starting employment he began complaining about breaks and compensation, particularly his concern that the compensation plan providing for draw against commission did not equal minimum wage for hours worked. Leaving aside how any rational person can readily discern when the average car salesperson is on break or not, or Mr. Aguirre’s lack of understanding the dynamic of 100% commission earning plans under the Fair Labor Standards Act, it’s fair to say he had his issues.
Mr. Aguirre’s front-line supervisor told him that the rules were the rules (surprise) and that if he did not like them he was welcome to leave employment. Not liking this answer Mr. Aguirre continued this line of inquiry with fellow employees, ultimately triggering a meeting with the owner, Mr. Tony Plaza, and two front-line managers.
Mr. Aguirre repeated his concerns to Mr. Plaza, adding a demand he be told how much Mr. Plaza was paying auto manufacturers for the vehicles he was selling. Mr. Plaza demurred, saying that Mr. Aguirre was required to follow company rules. He also advised Mr. Aguirre to stop complaining about the rules, twice saying he could quit if he did not like them. This was simply too much for Mr. Aguirre, and he launched into an F-bomb laden assault on Mr. Plaza, including accusations of sexual relations with his own mother as well as challenging his honesty, and integrity. Mr. Aguirre wrapped up his tirade by shoving his chair across the floor and telling Mr. Plaza that “he would be sorry if he terminated him.” Insubordination? Check. Abusive Language? Check. Threats? Check. Mr. Plaza, deciding to run whatever risk implied by Mr. Aguirre’s last statement, terminated his employment on the spot. No problem, right? Wrong.
John Ferrer of Ogletree , Deakins, Nash, Smoak & Stewart thoroughly explains the NLRB’s reasoning (or lack thereof) in the matter as it moved from an ALJ decision in favor of Plaza and the Ninth Circuit (!) remand to the Board to “rebalance” their decision. His post is worth the read.
Here’s the bottom line: HR Pros and managers need to proceed very cautiously when considering discipline of an employee who is engaged in protected concerted activity, typically meaning two or more employees acting to improve their compensation, benefits, or any other aspect of terms and conditions of employment. The concerns of a single employee can also be considered protected if they involve a topic of common concern, such as a compensation policy. Above all, managers should be properly trained to recognize these exposures and in particular develop sensitivity for any actions that could be considered retaliation for engaging in protected activity.