Shortly after being hired, Nick Aguirre began complaining to his co-workers and manager about the employer’s compensation and break policies. Tony Plaza, the owner of the company, called Aguirre into his office, scolded him for these conversations, and repeatedly reminded Aguirre he could quit if he did not like working at the company. Aguirre lost his temper and in a raised voice started berating Plaza, calling him a “f-ing mother f-er,” “f-ing crook,” and an “a-hole.” Aguirre then told Plaza that if he was fired, Plaza would regret it. Plaza fired Aguirre.
An Administrative Labor Judge determined Plaza violated the NLRA by inviting Aguirre to quit, but lawfully fired him for “obscene and personally denigrating terms accompanied by menacing conduct and language.” As you can imagine, the NLRB overturned the ALJ.
Under Atlantic Steel Co., in determining whether an employee who engaged in otherwise protected activity lost the protection of the act, the Board considers (1) the place where the discussion led to an outburst, (2) the subject matter of the discussion, (3) the nature of the employee’s outburst, and (4) whether the outburst was provoked by the employer’s illegal conduct. Here, the NLRB decided that the three factors weighing in favor of protection from the National Labor Relations Act outweighed the one factor weighing against protection.