NLRB: law protects employee’s right to curse out boss

by Walter Olson on June 24, 2014

In not just one recent case, but two:

* “During a meeting about commissions, minimum wage, and employee breaks [at a Yuma, Ariz. car dealership], an employee lost his temper, angrily calling his supervisors words such as [obscenities omitted]. He also stood up, shoved his chair aside, and told them they would regret it if they fired him. Unsurprisingly, that tirade resulted in the employee’s termination. Astoundingly, in Plaza Auto Center (5/28/14), the NLRB concluded that the termination was an unlawful violation of the employee’s rights to engage in the protected concerted activity.” [Jon Hyman, Ohio Employer's Law Blog; Brennan Bolt, Labor Relations Today]

* “Starbucks cannot fire a union activist employee who cursed at a manager in front of customers, the National Labor Relations Board has ruled for the second time. Joseph Agins was active in trying to unionize four Manhattan Starbucks coffee shops between 2004 and 2007.” His repeated imprecations, sometimes in the presence of customers, included “this is [BS],” “do everything your damn self,” “about damn time” when the manager arrived to help, and “go … yourself”. A protected pattern of behavior under federal labor law, the NLRB ruled. “The board ordered Starbucks to offer Agins his old job or a substantially equivalent position, compensate him for any loss of earnings and other benefits, and remove from its files any references to the unlawful firing.” [Seattle Post-Intelligencer]

Compare the separately developed field of “hostile-environment” law, in which the employer may be held liable for years’ worth of back pay if it does not separate from the workplace an employee who repeatedly confronts a co-worker with belligerent and profane abuse (& Scott Greenfield).

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When The Environment Has To Be Hostile To Someone | Simple Justice
06.27.14 at 8:49 am

{ 11 comments }

1 Rich 06.24.14 at 9:29 am

I imagine this what a target rich legal environment looks like.

2 Becky 06.24.14 at 1:41 pm

Employers are being forced to become parents. Parents of spoiled kids, by law.

3 Walter Olson 06.24.14 at 1:47 pm

Everyone has been well behaved so far, but I’d like to ask future commenters to remember to avoid belligerence and profanity. After all, this isn’t a workplace.

4 DEM 06.24.14 at 3:07 pm

It would be a lot easier if the federal government would go ahead and write down on a 3×5 index card the two or three remaining circumstances under which an employee can be legally fired.

5 Ron Miller 06.24.14 at 3:51 pm

I went back and read the car dealership opinion hoping that you misconstrued the opinion. I imagined myself on my high, white horse explaining what the is case really stood for, proving knowledge and edification to you and the masses.

Nope. You got it. So did the dissent.

6 marco73 06.24.14 at 7:39 pm

DEM – a 3×5 index card might be too large.

7 MattS 06.24.14 at 9:00 pm

@marco73,

Not if you use a 20 pt font.

8 Valguard 06.25.14 at 12:16 am

Your missing the key facts on which the decision turns in the Starbucks case. Namely, that the major reason Starbucks listed for his firing was the fact that he was engaged in union organizing, and that the NRLB found that other employees had engaged in far more obscene and rude behavior and not been fired.

Basically, Starbucks had to prove that they would have fired him if he hadn’t been attempting to organize a union, and they couldn’t. It probably didn’t help their case that Starbucks couldn’t even figure out who had actually decided to fire him. Which is a hilarious level of incompetence, I mean seriously, he was fired, but no one at Starbucks would admit to being the one to actually do the deed.

I can’t speak for the car dealer case, but the Starbucks case is less employees can do whatever they want, and more an employer can’t fire you on a pretext because they don’t like the fact that you’re trying to organize a union.

9 Jazzizhep 06.25.14 at 3:20 am

I might have a better understanding of NLRB’s ruling if I could find the statutes guaranteeing a particular job to a specific person, or the statutes requiring an employee’s termination to be “NLRB approved”.

As it is, I can take solace in the belief that the ideological composition of the NLRB will change and there is little chance that it will show as much fidelity to stare decisis as Chief Justice Roberts.

10 Valguard 06.25.14 at 6:29 pm

Jazzizhep, you might want to check out:

The National Industrial Recovery Act (1933)
The National Labor Relations Act (1935)
The Taft-Heartly Act(1947)
The Civil Rights Act(1964)
The Occupational Health and Safety Act(1971)
And many others…

People aren’t necessarily guaranteed a particular job, but there are reasons it can be illegal to fire someone, like becuase they’re trying to organize a union, or because they’re black, or because they reported unsafe working conditions.

I guess you should look harder next time.

11 John Thacker 06.27.14 at 9:59 am

Valguard:

I can’t speak for the car dealer case, but the Starbucks case is less employees can do whatever they want, and more an employer can’t fire you on a pretext because they don’t like the fact that you’re trying to organize a union.

More you can do whatever you want so long as you’re also trying to organize a union, which is the practical effect of the ruling.

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