A Tale of Two NLRBs

By | 2017-01-13T13:41:58+00:00 July 2nd, 2014|Categories: Respectful Workplace|Tags: |Comments Off on A Tale of Two NLRBs

If you’ve been paying attention to legal compliance issues, you know that the National Labor Relations Board (NLRB) has been a thorn in the side of many, many employers in the past few years.  The following case is illustrative:

Nick Aguirre was a car salesman in Arizona.  He met with two managers and the dealership’s owner to voice his concerns over wages, commissions, and break times.  When the owner told him that if he did not like the conditions he could find work elsewhere, Mr. Aguirre unleashed a string of obscenities at his superiors (including a few f-bombs and an a-hole).  Not surprisingly, he was fired.  Earlier this week, the NLRB ordered Mr. Aguirre reinstated.

According to the 2-1 ruling by the Board, Mr. Aguirre is entitled to the protections of the NLRB notwithstanding his behavior, because he was discussing working conditions and was responding to “extremely provocative acts” by the owner.  The Board further noted Mr. Aguirre did not touch anyone during his outburst, nor did he threaten to physically harm anyone.  The dissenting Board member pointed out that the decision implies “that the Act mandates tolerance of

[misbehavior] whenever it is connected to protected activity.”

This decision is pretty much the height of ridiculousness IMO.

So what is a proactive employer to do in response?  Not much.  It’s always wise to check with counsel before terminating someone.  Or have your seasoned HR professional do a risk assessment. But I don’t believe employers should feel hamstrung by employees who engage in insubordinate, disrespectful behavior. Sometimes, the lesser of two evils is the better choice (firing the offender and risking the wrath of the NLRB versus letting a cursing employee run roughshod over an organization).

But wait – a brand new U.S. Supreme Court case renders the above result, and many others, invalid.

The Supreme Court finally came out with its decision in the Noel Canning case, in which the D.C. Circuit Court of Appeals help that President Obama’s January 2012 recess appointments to the National Labor Relations Board were improper (not because recess appointments are improper in general, but because Congress was not actually in “recess” when the appointments were made).  The Supreme Court upheld that decision today.

This is huge news. It almost certainly means that thousands of Board decisions over the past couple of years are invalid. The NLRB’s activist stance in inserting itself into all workplaces, not just unionized ones, has been the subject of much commentary and criticism, including on this blog.

What does this mean for employers? Stay tuned.

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About the Author:

Sindy Warren
Sindy Warren is the principal of Warren & Associates LLC and an Associate Partner of Legacy Business Cultures. She is an HR and employment law consultant and uses her legal expertise to help clients create and maintain positive and legally compliant employment practices. Sindy creates and delivers training programs on harassment and discrimination and conducts independent workplace investigations. Sindy received her J.D. with honors from Stanford University. She received her B.S. in Psychology from Tufts University (Phi Beta Kappa, magna cum laude).