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If the boss is one (of those), you can call him that and not be fired!... 'Employee’s profane and insubordinate conduct shielded by protected activity...' National Labor Board upholds a worker's right to call his boss a M_____F______ and an A______!

Federal labor officials have ruled that if a worker calls his boss a motherfucking asshole, the discourse is protected speech and not "insubordination." For years, Chicago Public Schools officials have tried to claim that teachers, union reps, and other officials who accurately characterized their bosses were being "insubordinate" and could be disciplined or fired. Of late, even some Chicago Teachers Union leaders have taken up the same level of sensitivity on behalf of the Boss. Above, Father Michael Garanzini (left) and Forrest Claypool (right) at the April 27, 2016 meeting of the Chicago Board of Education. Garanzini is CEO of Loyola University, and Claypool is CEO of Chicago Public Schools. Substance photo by George N. Schmidt. Can you be fired for calling an asshole and asshole? And should a union rep be barred from the schools because some bosses claim they are too sensitive to be confronted with a union official's anger? With the Chicago Board of Education increasing the use of the term "insubordinate" against workers and union people who stand up for their rights, Chicago once again needs a lesson in basic labor law. Unlike the military, where "insubordination" may be a crime, the nation's third largest public school system is not a militarized institution. Can a worker call his boss a "bad" name and not be fired? The answer is "YES" according to federal labor law. You can call your boss a bad name and even stand up in a forceful manner during a meeting and not be fired, according to the NLRB.

We'll learn soon whether that law also applies to the nation's third largest public school system.

The National Labor Relations Board in 2014 reinstated a terminated a non-union employee after he called his boss a “fucking mother fucking,” a “fucking crook,” and an “asshole” during a meeting in the boss's office. Substance News continues its series in protected activity that exposes the coercive nature of Chicago Public Schools administrators and the CPS Law Department that violate the rights of Chicago Teachers Union members on a daily basis.

The employee, even got out of his chair during a meeting, stood up in the small office, pushed his chair aside, and told his boss that if he fired him, the boss would regret it.

The entire case was about the protected activity. The NLRB ruled that the employee had protection under the National Labor Relations Act (the “Act”) to discuss “terms and conditions” of employment (e.g., wages, breaks, and bathrooms) when he launched into his profane tirade.

In assessing whether an employee’s behavior is so egregious to lose protection of the Act, the Board considers the four factors enunciated in Atlantic Steel Co., 245 NLRB 814 (1979): (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by the employer’s unfair labor practices.

There was not enough evidence to show that his conduct was objectively “menacing, physically aggressive, or belligerent,” even though the managers testified that subjectively they feared for their safety. And because the incident occurred away from customers and coworkers, the NLRB concluded that there was minimal harm to the employer’s interest in maintaining discipline and order.

The terminated employee was reinstated.

Below is a write up of the case:

NLRB Finds Employee’s Profane and Insubordinate Conduct Shielded by Protected Activity

By Brennan W. Bolt on May 30, 2014

While gang violence has been increasing at a frightening rate in Chicago's public schools and issues involving environmental safety (including asbestos poisoning) have also increased, Chicago's chief of school security and safety, Jadine Chou, has been devoting more and more time to carping about the rudeness of some teachers, principals and union reps. Above, Chou explained the additional CTU security procedures during the April 27, 2016 meeting of the Chicago Board of Education. Substance photo by George N. Schmidt.On remand from the Ninth Circuit, the National Labor Relations Board in Plaza Auto Center, Inc., 360 NLRB No. 117 (2014), again found 2-1 that an employer violated the National Labor Relations Act by firing an employee for an outburst during which the employee used profanity and personally attacked the owner of the business. Specifically, after complaining to the office manager about the employer’s compensation practices, the owner called the employee into a meeting and told the employee that he was “talking a lot of negative stuff” and asking too many questions.

“Plaza [the owner] told Aguirre [the employee] that he had to follow the Respondent’s policies and procedures … and that he should not be complaining about his pay. Plaza twice told Aguirre that if he did not trust the Respondent, he need not work there. At that point, Aguirre lost his temper and in a raised voice started berating Plaza, calling him a “fucking mother fucking,” a “fucking crook,” and an “asshole.” Aguirre also told Plaza that he was stupid, nobody liked him, and everyone talked about him behind his back. During the outburst, Aguirre stood up in the small office, pushed his chair aside, and told Plaza that if Plaza fired him, Plaza would regret it. Plaza then fired Aguirre.”

In assessing whether an employee’s behavior is so egregious to lose protection of the Act, the Board considers the four factors enunciated in Atlantic Steel Co., 245 NLRB 814 (1979): (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by the employer’s unfair labor practices.

While the administrative law judge found that the employee lost protection of the Act because of his “belligerent” conduct, the Board’s initial 2-1 decision (355 NLRB 493) concluded that the employee’s conduct was not so severe as to cause him to lose his statutory protections. In reaching that conclusion, the Board found that all four Atlantic Steel factors weighed in favor of protection. The Ninth Circuit (Plaza Auto Center, Inc. v. NLRB, 664 F.3d 286 (9th Cir. 2011)), agreed on three of the factors, but remanded the case back to the Board because it found that the Board had erred in its initial assessment that the nature-of-the-outburst factor weighed in favor of protection.

On remand, Chairman Pearce and Member Hirozawa rejected the ALJ’s finding that the employee’s behavior was “belligerent,” “menacing,” and “at least physically aggressive if not menacing,” but agreed with the Ninth Circuit’s finding that the nature-of-the-outburst factor weighed against protection. Nevertheless, the Board still found that the other three factors weighed in favor of the employee retaining protection of the Act because:

the outburst occurred in a closed-door meeting in a manager’s office away from the workplace;

the subject matter concerned the employee’s protected conduct; and

the employee’s conduct was provoked by the employer’s unfair labor practice of inviting the employee to quit if he did not like the employer’s policies.

Moreover, the outburst:

“was a spontaneous reaction to the Respondent’s serious, unlawful provocations by an employee who had never previously engaged in similar misconduct.”

Member Johnson issued a “vigorous dissent” given the Board majority’s reversal of the ALJ’s critical credibility findings and that it failed to follow the decision of the Ninth Circuit. However, he further noted that he would dissent even if the Board had authority to review the entire case anew:

“my colleague’s analysis of the permissible range of profane and insubordinate conduct by employees toward management is cause for disagreement. Their approach implies that such misbehavior is normative, or at least that the Act mandates tolerance of it whenever profane and menacing outbursts are somehow connected to protected concerted activity. I disagree. By this standard, employees like Nick Aguirre will be permitted to curse, denigrate, and defy their managers with impunity during the course of otherwise protected activity, provided that they do so in front of a relatively small audience, can point to some provocation, and do not make overt physical threats. In my view, few, if any, employers would countenance such behavior in the absence of protected activity. I do not believe they must act so differently when the confrontation involves protected activity.”



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