Plaza Auto Center, Inc.

National Labor Relations Board - Board Decisions

Aug 16, 2010

355 N.L.R.B. 493 (N.L.R.B. 2010)

PLAZA AUTO CENTER, INC.
355 NLRB No. 85
493
Plaza Auto Center, Inc. and Nick Aguirre. Case 28–
CA–22256
August 16, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
On July 21, 2009, Administrative Law Judge Lana H.
Parke issued the attached decision. The General Counsel
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der, and to adopt the recommended Order as modified
and set forth in full below.2
The General Counsel excepts to the judge’s dismissal
of the complaint allegation that the Respondent unlaw-
fully discharged employee Nick Aguirre following his
outburst at a meeting with the Respondent’s owner and
sales managers. The General Counsel contends that
Aguirre was engaged in protected concerted activity at
the meeting and that his outburst was not so egregious as
to lose the protection of the Act under Atlantic Steel Co.,
245 NLRB 814 (1979). We find merit in the exceptions.
Facts
The Respondent, which sells preowned automotive ve-
hicles, hired Aguirre in August 2008 as a salesperson.3
On his first day of work, the Respondent was conducting
one of its periodic tent sales in a Sears parking lot.
When Aguirre inquired as to what restroom he should
use during the sale, his coworkers laughed and pointed in
various directions. Sales Manager Juan Felix pointed
toward the Sears store and a gas station across the street.
At a sales staff meeting the following week, Aguirre
asked whether the Respondent gave employees a break
and a meal during the tent sales, and Felix responded,
“You’re always on break, buddy . . . you just wait for
customers all day,” adding that if Aguirre did not like the

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We have modified the conclusions of law, amended the remedy,
and substituted a new notice for that of the administrative law judge.
3 All dates are 2008 unless otherwise indicated.
way that the Respondent operated, he could leave at any
time.
At the next tent sale, Aguirre asked other employees
about the Respondent’s compensation system, and they
told him that the salesmen were paid straight commission
with no guaranteed minimum. Aguirre also discussed
how the salespeople could alternate restroom breaks.
However, when he asked Felix if he could take a break to
eat and use the restroom, Felix refused, again telling
Aguirre that if he did not like it he could leave. Felix
also reiterated to Aguirre and the other salesmen that
they were always on break.
At the next sales staff meeting, another employee
raised the subject of pay. Sales Manager Gustavo Mac-
Grew responded that if the employees did their jobs
right, including following procedures, doing test drives,
and completing paperwork, and did not give cars away
for free, they would make money. When Aguirre sold a
vehicle listed on the Respondent’s Flat List4 as carrying a
commission of $1000–$2000, he was surprised to receive
a check for only $150 gross. His colleagues agreed that
the amount was unfairly low, and Aguirre confronted
Felix, who replied that the Respondent had given the
vehicle away almost for free.
During a later sales staff meeting, the Respondent’s
owner, Tony Plaza, mentioned that there were scratches
on a vehicle and threatened to deduct the repair cost from
all of the salesmen’s pay unless the person responsible
came forward. Aguirre asserted that the cost should in-
stead be shared by all employees who had access to the
vehicle. At the same meeting, Plaza raised the subject of
employee negativity, stating that he had a stack of appli-
cations from which he could easily hire. Employee
Oscar Martinez brought up breaks and meal periods, add-
ing that Felix had been disrespectful when Martinez
asked about them. Plaza answered that the Respondent
was trying to work out the break issue.
In October, Aguirre told Felix that he wanted to know
which cars carried a good commission, because he
thought that the Respondent was stealing his money.
Felix answered that if Aguirre did not trust the Respon-
dent, he was welcome to go elsewhere.
Aguirre subsequently contacted a State wage and hour
agency. He told his coworkers that the “Labor Commis-
sion” said that employees should get minimum wage as a
draw against commissions and that he would inform Of-
fice Manager Barbara Montenegro after he obtained
more information. On October 28, Aguirre asked Mon-
tenegro whether salesmen were entitled to a minimum

4 The Flat List shows vehicles that have been on the lot for an ex-
tended time and predetermined commissions intended as an incentive
for the salesmen to sell those vehicles.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 494
wage draw, and she replied that the Respondent did not
pay minimum wage and that, if he wanted a minimum
wage job, the sales job was not the job for him. Aguirre
told her that he had spoken with the State Labor Board
and asked if she could find the answer, perhaps by asking
Plaza.
On the same afternoon, Felix called Aguirre into his
office to meet with Plaza, Felix, and MacGrew. Felix
had just informed Plaza that Aguirre complained about
everything, including not trusting the Respondent con-
cerning commissions and not knowing the Respondent’s
cost of vehicles. Plaza began the meeting by stating that
Aguirre was “talking a lot of negative stuff” that would
negatively affect the sales force. Aguirre said that he had
questions about vehicle costs, commissions, and mini-
mum wage. Plaza admitted responding that Aguirre
needed to follow policies and procedures, including the
pay structure, and that he should not be complaining
about pay. He added that car salesmen normally did not
know the cost of vehicles. At least twice, Plaza said that
if Aguirre did not trust the Respondent, he did not need
to work there. Aguirre became upset and told Plaza that
he was an “F’ing mother F’ing,” an “F’ing crook,” and
“an asshole,” and that he was stupid, nobody liked him,
and everyone talked about him behind his back. At one
point, Aguirre stood up in the small office, pushed his
chair aside, and said that, if he was fired, Plaza would
regret it. Following Aguirre’s outburst, Plaza fired him.
The judge found that the Respondent had discharged
salesman Eddie Yemes in 2008 for telling Felix at a tent
sale to “f— himself.”
Discussion
As an initial matter, the judge determined that
Aguirre’s questioning of the Respondent’s policies con-
cerning breaks, restroom facilities, and compensation
constituted protected concerted activity under the Act.
Moreover, she found that the Respondent’s statements in
response to Aguirre’s inquiries, that if he disliked the
Respondent’s policies he did not need to work there, vio-
lated Section 8(a)(1). No party excepted to these find-
ings. The judge further found that the Respondent termi-
nated Aguirre because of his outburst toward Plaza. We
adopt these findings. We also adopt the judge’s findings
of fact concerning the October 28 meeting, which are
largely based on her assessment of credibility.
The Atlantic Steel Analysis
Because Aguirre’s outburst occurred at a meeting held
in the context of his protected concerted activity, the
judge applied the test set forth by the Board in Atlantic
Steel, 245 NLRB 814, 816 (1979), for determining
whether the conduct was so egregious as to lose the pro-
tection of the Act.5 In Atlantic Steel, the Board identified
four factors to be balanced in the determination: (1) the
place of the discussion, (2) the subject matter of the dis-
cussion, (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. As the judge here
correctly observed, the Act allows some latitude for im-
pulsive conduct by employees in the course of protected
concerted activity, but, at the same time, recognizes that
employers have a legitimate need to maintain order.6
The balance between these policy concerns lies at the
heart of the Atlantic Steel analysis.
Factors 1, 2, and 4: We agree with the judge that the
first, second, and fourth Atlantic Steel factors favor a
determination that Aguirre’s conduct was protected.
With respect to the first factor, the place of the discus-
sion, the meeting took place in Felix’s office, in the pres-
ence of only management officials. Montenegro, whose
office is adjacent to Felix’s, testified that she could hear
Aguirre speaking in a loud voice but could not hear what
he was saying. Under these circumstances, his outburst
could not have undermined workplace discipline at the
Respondent’s facility. As to the second factor, the sub-
ject matter of the discussion, the discussion involved
Aguirre’s protected concerted activity of raising ques-
tions about terms and conditions of employment, particu-
larly the Respondent’s policies pertaining to breaks and
compensation. Finally, with regard to the fourth factor,
whether the employee was provoked, at least twice dur-
ing the meeting, the Respondent reiterated to Aguirre its
frequent warning that if he did not like the Respondent’s
policies he did not need to work there. The judge found,
and we agree, that these statements were unlawful and
provocative responses to Aguirre’s inquiries. Felix In-
dustries, supra, 331 NLRB at 145.
Factor 3: Contrary to the judge, we do not find that
the third factor, the nature of the outburst, favors the loss
of protection, or that this factor warrants an ultimate con-
clusion that Aguirre forfeited his Section 7 protections.

5 The judge also analyzed Aguirre’s discharge under the Board’s test
in Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). That test, however, pro-
vides a means of resolving questions of employer motivation. Here, it
is undisputed that the Respondent terminated Aguirre because of his
outburst in the October 28 meeting, which the judge found, and we
agree, otherwise involved protected concerted activity. In such circum-
stances, Atlantic Steel provides the appropriate analysis. Felix Indus-
tries, 331 NLRB 144, 145–146 (2000), enfd. in relevant part 251 F.3d
1051 (D.C. Cir. 2001), supplemented 339 NLRB 195 (2003), enf. mem.
2004 WL 1498151 (D.C. Cir. 2004).
6 Tampa Tribune, 351 NLRB 1324, 1324–1325 (2007), enf. denied
sub nom. Media General Operations v. NLRB, 560 F.3d 181 (4th Cir.
2009); NLRB v. Thor Power Tool, 351 F.2d 584, 587 (7th Cir. 1965),
enfg. 148 NLRB 1379, 1380 (1964).
PLAZA AUTO CENTER, INC. 495
The Board has found that communications in the
course of protected activity are also protected unless they
are “so violent or of such serious character as to render
the employee unfit for further service.” St. Margaret
Mercy Healthcare Centers, 350 NLRB 203, 204–205
(2007) (citations omitted), enfd. 519 F.3d 373 (7th Cir.
2008). As the judge acknowledged, a single verbal out-
burst of insulting profanity does not exceed the bounds
of the Act’s protection. Thus, in Burle Industries, 300
NLRB 498 (1990), enfd. 932 F.2d 958 (3d Cir. 1991),
the Board found that an employee did not forfeit protec-
tion when, in the course of encouraging employees to
leave the facility due to a possible chemical spill, he
called a supervisor a “f’ing asshole” for wanting employ-
ees to work despite the fumes. The judge there found
that the employee overreacted when he believed that the
supervisor was making light of the situation, but that the
outburst was attributable to frustration and “animal exu-
berance” in the heat of the moment.
Here, the judge variously labeled Aguirre’s “cursing
and derogating” of Plaza as “belligerent,” “menacing,”
and “at least physically aggressive if not menacing.”
Although we do not condone Aguirre’s outburst toward
Plaza, the judge’s characterizations of it are inconsistent
with her own factual findings and overstate its severity in
light of the evidence. Because the judge’s descriptions
are unsupported by the record, we do not rely on them;
instead we assess Aguirre’s conduct based on the cred-
ited evidence.7
In context, we find that Aguirre’s profanity was not so
opprobrious as to deprive him of statutory protection.
Prior to the October 28 meeting, Aguirre on several oc-
casions expressed concerns about the Respondent’s poli-
cies and stated that he believed that its compensation
policies violated state wage and hour requirements. The
Respondent consistently dismissed his inquiries, which it
viewed as demonstrating a negative attitude that it did
not want to influence other employees. Moreover, the
Respondent’s unlawful refrain that if Aguirre did not like
its policies, he could quit invited a strong reaction from
Aguirre, which finally occurred when Plaza repeated the

7 Our dissenting colleague would accept the judge’s characteriza-
tions of Aguirre’s conduct based on the premise that the judge was in a
position to observe witnesses’ representations of Aguirre’s tone and
body language, which are not apparent in the written record. However,
it is the Respondent’s responsibility to present on the record all relevant
evidence supporting its position, including, where appropriate, testi-
mony concerning a speaker’s tone and gestures. The Respondent here
has provided no such evidence that warrants the judge’s descriptions of
Aguirre’s conduct. In addition, as discussed infra, the judge did not
explain the basis of her findings, whether it be witnesses’ nonverbal
imitations of Aguirre’s conduct or otherwise. Therefore, in reviewing
the record based on the General Counsel’s exceptions, we cannot rely
on the judge’s unexplained and unsupported characterizations.
statement at the October 28 meeting.8 Unlike the em-
ployee in Burle Industries, supra, Aguirre uttered more
than a single profanity against Plaza. Nevertheless, his
was a single and brief outburst provoked by Plaza’s fail-
ure to respond to Aguirre’s concerns and his invitation,
once again, that Aguirre work elsewhere.9 Moreover,
according to Aguirre’s unrebutted testimony, Felix had
also used obscene language, including “the F word,” on
several occasions in addressing sales employees, some-
times in the presence of MacGrew. Therefore, the record
shows that profane language was not outside the range of
conduct at the Respondent’s facility.10
We further find that Aguirre’s statement that if Plaza
fired him he would regret it was not a threat of physical
harm. The statement itself did not refer to such harm in
any way. In the context of Aguirre’s recent inquiry to a
State agency regarding the employees’ entitlement to a
minimum wage draw against commissions, it seems clear
that Aguirre was threatening legal consequences. Fur-
thermore, the record shows no evidence of any physical
harm or threat thereof by Aguirre during his employ-
ment. Under these circumstances, we find it much more
likely that Aguirre was threatening to report the Respon-
dent’s practices to State authorities than to retaliate
against the Respondent through violence.

8 Plaza also admitted telling Aguirre at the meeting that he should
not complain about the Respondent’s pay structure. This statement was
not separately alleged as unlawful.
9 Compare Aluminum Co. of America, 338 NLRB 20, 21–22 (2002)
(repeated incidents of ad hominem profanity against supervisor not
emotional outburst provoked by officials of the employer and not
within Act’s protection).
In view of Plaza’s invitation that Aguirre work elsewhere, and the
judge’s finding, with regard to the fourth factor, that Aguirre’s outburst
was provoked by Plaza, we find that the judge erred in stating that it
occurred “[w]ithout extreme provocation from overt hostility or an-
tagonism from [Plaza].”
The judge also cited the Respondent’s September discharge of
Yemes, whose misconduct she deemed less serious than Aguirre’s
because it was less extensive and not directed at the Respondent’s
owner. However, we do not find Yemes’ discharge relevant to this
case. As explained, the legality of Aguirre’s discharge does not turn on
the Respondent’s motive or its past practice. Whether the Respondent
discharged another employee in arguably comparable circumstances,
lawfully or not, does not bear on whether Aguirre lost the protection of
the Act.
10 In finding that the Respondent satisfied its burden under Wright
Line to show that it would have discharged Aguirre even in the absence
of his protected concerted activity, the judge cited the Respondent’s
September discharge of Yemes for an arguably comparable outburst
toward Felix at a tent sale. We do not find Yemes’ discharge relevant
to our decision. As explained, because the Respondent’s motivation
here is not at issue, the legality of Aguirre’s discharge is appropriately
analyzed under Atlantic Steel rather than Wright Line. Further, even if
Yemes’ discharge indicates that the Respondent did not tolerate ob-
scene language on that occasion, the fact remains that such language
was used in the Respondent’s workplace, as demonstrated by Felix’s
own conduct.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 496
For these reasons, we disagree with the judge that
Aguirre’s verbal outburst was “belligerent,” “physically
aggressive,” or “menacing.” The judge also failed to
identify any physical aggression that would support such
a description, and we find none. In fact, the only physi-
cal movement by Aguirre that the judge found was his
standing up and pushing aside the chair. However, even
considering Aguirre’s apparent frustration or anger dur-
ing the meeting, it is not clear from the record, and the
judge did not find, whether this was a hostile action or
one of necessity in Felix’s office, which Plaza testified
was “really small,” approximately 8 or 10 feet by 10
feet.11 Moreover, neither Plaza’s contemporaneous note
nor the Respondent’s position statement to the Board in
response to the unfair labor practice charge referred to
any physical conduct by Aguirre, and the judge found
that the Respondent discharged him for his verbal attack,
not for any physical threat.
Relying on the judge’s findings of fact, we conclude
that Aguirre’s outburst, while vehement and profane, was
brief and unaccompanied by insubordination, physical
contact, threatening gestures, or threat of physical harm.
Therefore, we find that his conduct did not render him
unfit for further service and thus did not exceed the
bounds of statutory protection under Atlantic Steel’s third
factor.
Based on our determination that all of the Atlantic
Steel factors weigh in favor of finding Aguirre’s conduct
in the October 28 meeting within the protection of the
Act, we reverse the judge and conclude that the Respon-
dent violated Section 8(a)(1) by discharging him.12

11 In this regard, the judge acknowledged but did not resolve the in-
consistencies in the testimony of the Respondent’s witnesses. Thus,
she did not determine whether Aguirre threw the chair (Felix), hit the
desk (MacGrew), or “got on [sic] my face” (Plaza). None of these
statements was corroborated by another witness, and the judge did not
rely on them in her findings of fact.
12 Cf. Daimler-Chrysler Corp., 344 NLRB 1324, 1328–1328 (2005).
In that case, as the judge found, only the second factor favored protec-
tion, and the Board found the employee’s conduct repeated, profane,
and insubordinate. Chairman Liebman dissented in Daimler-Chrysler.
Member Pearce did not participate in that case and takes no position as
to whether it was correctly decided.
Even assuming for the sake of argument that the third factor favors
the loss of protection, the Atlantic Steel test requires a careful balancing
of the four factors to determine whether the employee’s conduct
crossed the line of statutory protection. 245 NLRB at 816. On balance,
we find that Aguirre’s conduct did not cross that line. Factors 1, 2, and
4 clearly favor protection for the reasons discussed. Even if factor 3
favors depriving Aguirre of the Act’s protection, we find that, in the
circumstances here, it is outweighed by the other factors. We note
particularly the absence of prior improper conduct, the Respondent’s
unwillingness to resolve the issues previously raised by Aguirre, and
Plaza’s provocation of the outburst. Felix Industries, 339 NLRB 195,
196–197 (2003).
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce and a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act
by telling employees that they could quit or leave the
Respondent’s employ if they did not like company poli-
cies and/or procedures.
3. The Respondent violated Section 8(a)(1) of the Act
by discharging employee Mark Aguirre because he en-
gaged in protected concerted activity in order to discour-
age other employees from exercising their rights under
the Act.
4. The unfair labor practices set forth above affect
commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
AMENDED REMEDY
We adopt the remedies recommended by the judge. In
addition, having found that the Respondent violated Sec-
tion 8(a)(1) by discharging employee Mark Aguirre be-
cause he engaged in protected concerted activity in order
to discourage other employees from exercising their
rights under the Act, we shall order the Respondent to
offer Aguirre immediate reinstatement to his former job,
or if that job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or any
other rights and privileges previously enjoyed. We shall
also order the Respondent to make Aguirre whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against him. Backpay shall be com-
puted in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest to be computed in the
manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987). The Respondent shall also be
required to expunge from its files any and all references
to the discharge, and to notify Aguirre in writing that this
has been done and that the discharge will not be used
against him in any way.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Plaza Auto Center, Inc., Yuma, Arizona, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Cease and desist from
(a) Telling employees that they can quit or leave the
Respondent’s employ if they do not like company poli-
cies and/or procedures.
(b) Discharging or otherwise discriminating against
any employee because he engaged in protected concerted
PLAZA AUTO CENTER, INC. 497
activity in order to discourage employees from exercis-
ing their rights under the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Nick Aguirre full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Nick Aguirre whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, as set forth in the Amended Remedy
section of this Decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge,
and within 3 days thereafter notify the employee in writ-
ing that this has been done and that the discharge will not
be used against him in any way.
(d) Within 14 days after service by the Region, post at
its Yuma, Arizona facility copies of the attached notice
marked “Appendix.”13 Copies of the notice, on forms
provided by the Regional Director for Region 28, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since September 3, 2008.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER SCHAUMBER, dissenting.
I agree with my colleagues and the judge that the first,
second, and fourth factors of the Atlantic Steel1 analysis

13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 Atlantic Steel Co., 245 NLRB 814 (1979).
favor a finding that Nick Aguirre’s conduct was pro-
tected by the Act. As to the third factor, however, I
would adopt not only the judge’s findings concerning
what occurred at the October 28, 2008 meeting, but also
her assessment of the nature and seriousness of Aguirre’s
conduct. Therefore, I agree with the judge that the third
factor does not favor protection. Moreover, like the
judge, I would dismiss the complaint.
The critical evidence in this case is the testimony of
Aguirre and the Respondent’s officials, evidence that the
judge is in a unique position to evaluate. Thus, based on
her observation of the demeanor of the witnesses, the
judge credited the testimony of the Respondent’s offi-
cials over that of Aguirre. The majority has accepted this
determination, in accordance with the Board’s longstand-
ing policy,2 and I agree with my colleagues on this point.
However, the opportunity to view and evaluate witness
demeanor is not the administrative law judge’s only ad-
vantage. The judge also gains important insights from
the manner in which testimony is conveyed, including
the witnesses’ representations of a speaker’s tone and
body language. The hearing transcript, on which the
Board must rely, cannot adequately communicate these
aspects of the witnesses’ testimony. Therefore, in a case
such as this, which turns primarily on Aguirre’s words
and actions in the October 28 meeting, I would not over-
turn the judge’s characterization of the pivotal events
unless the record included compelling evidence that she
was wrong. I find no such evidence in this case.
In addition, I disagree with my colleagues that Felix’s
use of profanity toward employees and in MacGrew’s
presence indicates that the Respondent tolerated such
language. Aguirre conceded in his testimony that Felix
had never used profanity when Plaza was present.
Moreover, Plaza’s decision to discharge employee Eddie
Yemes for uttering a single obscenity toward Felix shows
that the Respondent in fact maintained a strict policy
against profane language toward supervisors.
For the above reasons, I agree with the judge that the
third factor of the Atlantic Steel analysis favors a finding
that Aguirre forfeited the protection of the Act. Also like
the judge, I find that, in balancing the test’s four factors,
substantial weight should be accorded to the third factor
and, in cases of outrageous behavior, it can be determina-
tive.3 In my view, this is such a case. Plaza’s statement
that Aguirre could work elsewhere was unlawful but not

2 Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951).
3 Stanford Hotel, 344 NLRB 558, 559 fn. 7 (2005) (stating my
agreement with Chairman Battista’s dissent on this point in Felix Indus-
tries, 339 NLRB 195 (2003), enfd. per curiam D.C. Cir. 2004) (No. 03–
1221, 03–1239)).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 498
extreme, and Aguirre’s shouted profanity was far out of
proportion to this provocation. Accordingly, I would
find that the Respondent lawfully discharged Aguirre
under Atlantic Steel.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT tell employees that they can quit or leave
our employ if they do not like our policies and/or proce-
dures.
WE WILL NOT discharge or otherwise discriminate
against any of you because you engage in protected con-
certed activity in order to discourage you from exercising
your rights under the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Nick Aguirre full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Nick Aguirre whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Nick Aguirre, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.

PLAZA AUTO CENTER, INC.

Joel C. Schochet, Atty., for the General Counsel.
Alicia Z. Aguirre, Atty. (Law Office of Alicia Z. Aguirre, PLC),
of Yuma, Arizona, for the Respondent.
DECISION
I. STATEMENT OF THE CASE
LANA PARKE, Administrative Law Judge. Pursuant to
charges filed by Nick Aguirre (Mr. Aguirre), an individual, the
Regional Director of Region 28 of the National Labor Relations
Board (the Board) issued a complaint and notice of hearing (the
complaint) on January 30, 2009. The complaint alleges that
Plaza Auto Center, Inc. (the Respondent) violated Sections
8(a)(1) of the National Labor Relations Act (the Act). This
matter was tried in Somerton, Arizona, on May 5, 2009.1
II. ISSUES
1. Did Respondent violate Section 8(a)(1) of the Act by dis-
charging Mr. Aguirre on October 28?
2. Did Respondent violate Section 8(a)(1) of the Act by
threatening employees with unspecified reprisals and by invit-
ing them to quit their employment?
III. JURISDICTION
At all relevant times, the Respondent, an Arizona corpora-
tion, has been engaged in the business of selling pre-owned
automotive vehicles with an office and place of business in
Yuma, Arizona (the Respondent’s facility).2 In conducting its
business operations during the 12-month period ending Decem-
ber 1, the Respondent derived gross revenues in excess of
$500,000 and purchased and received at its facility goods val-
ued in excess of $50,000, directly from points located outside
the State of Arizona and from other enterprises located within
the State of Arizona, each of which had received the goods
directly from points outside the State of Arizona. I find Re-
spondent has at all relevant times been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
IV. STATEMENT OF FACTS
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I find the follow-
ing events occurred in the circumstances described below dur-
ing the period relevant to these proceedings:

The individuals named below, holding the stated positions
with the Respondent, were supervisors within the meaning of
Section 2(11) of the Act and comprised the management hierar-
chy of the Respondent:

Tony Plaza Sr. (Mr. Plaza) — Owner
Juan Felix (Mr. Felix) — Sales Manager
Gustavo MacGrew (Mr. MacGrew) — Sales Manager
Barbara Montenegro (Ms. Montenegro) — Office Manager

In its business, the Respondent utilized two shifts of sales
personnel: 8 a.m. to 3 p.m. and 1 p.m. to 8 p.m. The Respon-
dent had no employee break policy.3 Periodically the Respon-

1 All dates are 2008, unless otherwise specified.
2 Unless otherwise explained, findings of fact herein are based on
party admissions, stipulations, and uncontroverted testimony.
3 However, according to Mr. Felix, employees could take breaks
“whenever they want to most likely.”
PLAZA AUTO CENTER, INC. 499
dent held vehicle sales events at a Sears parking lot in Yuma
(Sears tent sale) over 3-day weekends, commencing Friday and
concluding Sunday. The Respondent’s vehicle salespeople and
supervisors staffed the Sears tent sales. The Respondent com-
pensated its salespeople by commission only.4 The Respondent
maintained a “Flat List” of vehicles for sale, i.e., vehicles that
were hard to sell, for sale of which the Respondent paid its
sales personnel an incentive fee called a “flat commission.”
The Respondent commonly held sales staff meetings each
Wednesday.
Mr. Aguirre began working for the Respondent at the end of
August as a salesperson. His first day of work coincided with a
Sears tent sale. In the course of his first day, Mr. Aguirre asked
fellow salespeople what restroom facilities he was to use.
Some laughed and pointed in various directions. When Mr.
Aguirre asked Mr. Felix the same question, Mr. Felix pointed to
an area across the street from the parking lot where the Sears
store and a Circle K gas station were located.5
On the following Wednesday, Mr. Aguirre attended a sales
staff meeting at the Respondent’s facility along with other
salespeople and Mr. Felix and Mr. MacGrew. At the meeting,
Mr. Aguirre learned the company held the Sears tent sales
every 2 weeks. Mr. Aguirre asked if employees were entitled
to a break and a meal during the Sears tent sales. Mr. Felix
said, “You’re always on a break, buddy . . . you just wait for
customers all day.” Mr. Felix also said that if Mr. Aguirre did
not like the way the company operated, he was welcome to
leave at any time.
The Respondent held its next Sears tent sale in mid-
September. At that sale, Mr. Aguirre discussed the Respon-
dent’s employee compensation system with other salespeople.
They told him that compensation was straight commission with
no income floor, i.e., a guaranteed minimum amount of com-
pensation a salesperson earns within a specified time period.
During the course of the sale, Mr. Aguirre discussed with two
other salespeople how to alternate restroom breaks. Mr.
Aguirre asked Mr. Felix if he could take a break to eat and use
the restroom. Mr. Felix refused, saying “If [Mr. Aguirre] didn’t
like it that [he] could just [leave].” Mr. Felix told Mr. Aguirre
and salesmen, Oscar Martinez and Jimmy Pagan, who were
also present, that the sales staff was always on a break.
At the following sales staff meeting held at the Respondent’s
facility, a salesperson other than Mr. Aguirre asked how much
employees would be paid. Mr. MacGrew answered that if the
sales staff did their jobs right, did the test rides, filled out the
proper paperwork, followed the procedures, and did not give
the car away for free, they would make money.6

4 Sometime in 2009 after being contacted by the Industrial Commis-
sion of Arizona with regard to minimum wage violations, the Respon-
dent began compensating its salespeople with a minimum wage as a
draw against commissions.
5 Consequent to the Respondent’s rental of the Sears parking lot, the
Respondent’s employees were permitted to use the mall’s restrooms.
6 The Respondent encouraged salespeople to fill out all proper
documentation for the sale, including customer references, identifica-
tion, insurance, etc., to urge the customer to pay the purchase price
rather than pressuring the “desk” to lower the price, to avoid offering
up to $500 cash-back incentives on select vehicles, and to take potential
At some point prior to receiving his first paycheck, Mr.
Aguirre sold a 1999 Suburban that had been on the Respon-
dent’s lot for several months. According to Mr. Aguirre, a
vehicle of the same description was listed on the Flat List with
a commission rate of $1,000 to $2,000. When Mr. Aguirre
received his paycheck, he was surprised that the amount was
only $150 gross. Mr. Aguirre showed his paycheck to several
fellow salespersons who agreed with him that the amount was
unfair. When Mr. Aguirre confronted Mr. Felix about his small
paycheck, pointing out he had sold the 1999 Suburban, Mr.
Felix said the company had given the vehicle away almost for
free.
Over the weeks of his employment, Mr. Aguirre talked to
other sales employees about his concerns with the way the Re-
spondent paid them, the lack of a restroom facility at the Sears
tent sales, and the inability to leave the work area by car to eat.
At one of the Respondent’s Wednesday sales meetings, date
unspecified, Mr. Plaza raised the following concerns: (1)
scratches on the left rear panel of a vehicle for sale and
(2) employee negativity. As to the first issue, Mr. Plaza said if
the employee responsible for the damage to the vehicle did not
come forward, he would deduct the repair cost from sales em-
ployees’ paychecks. Mr. Aguirre objected, saying, “I believe
that is unfair for you to do that to us. We work hard for our
money . . . if you’re going to deduct any kind of money from
anyone’s payroll, it would be fair to deduct from everyone who
has access to this vehicle.” As to the issue of employee nega-
tivity, Mr. Plaza said Respondent had a stack of applications
from hopeful job seekers whom they could easily hire.7 Mr.
Plaza asked employees to speak about employee morale.
Salesman Oscar Martinez told Mr. Plaza the only problem he
had was with the breaks and meal periods and that Mr. Felix, in
addressing those issues, was short with him and disrespectful.
Mr. Plaza answered that the company was trying to work out
the meal and break issue and that he would talk to Mr. Felix.
In October at a Sears tent sale, Mr. Aguirre told Mr. Felix,
essentially, that he wanted to know which cars would deliver
good commissions upon sale because he thought the company
was stealing his money. Mr. Felix told Mr. Aguirre that if he
didn’t trust the company or their method of payment, he was
welcome to go elsewhere.8

buyers on test rides. At some unspecified time, Mr. Felix had told
Mr. Aguirre that if he did not offer incentives, he could make good
money.
7 Mr. Plaza denied telling Mr. Aguirre at this meeting that if he did
not like company procedures, he didn’t have to work there or could
leave. Mr. Plaza did not deny referring to multiple employment appli-
cants, and I find that employees could reasonably infer from his state-
ments that they could seek other employment if they were dissatisfied.
Counsel for the General Counsel sought permission to amend the com-
plaint to allege Mr. Plaza’s statement as a violation of Sec. 8(a)(1),
which I denied. While not addressed herein as a violation, the ex-
change between Mr. Aguirre and Mr. Plaza is relevant to animus.
8 Mr. Felix denied this statement, saying he told Mr. Aguirre that
“nobody should be in a company if they don’t believe in the company.”
However, in his Board affidavit, Mr. Felix recounted, “I told
[Mr. Aguirre] that if he did not trust the company, that he should not
work for the company,” and in redirect examination, did not challenge
the underlying fact assumption in Respondent counsel’s question,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 500
In late October, Mr. Aguirre contacted an Arizona agency
with jurisdiction over wage and hour issues9 about the Respon-
dent’s sales compensation system. Thereafter, Mr. Aguirre told
fellow salespersons that the Labor Commission had said the
employees should get minimum wages as a draw against com-
missions. Mr. Aguirre told the others that when he got the full
facts from the Labor Commission he would inform Ms. Monte-
negro of his findings.10
On October 28, Mr. Aguirre approached Ms. Montenegro in
her office and asked her if the salespeople were entitled to
minimum wage as a safety net toward future commissions.
Ms. Montenegro said the company did not pay minimum wage
and if Mr. Aguirre wanted a minimum wage job, the sales job
was not the job for him. Mr. Aguirre told Ms. Montenegro he
had spoken to the Arizona Labor Board and that the salespeople
were entitled to minimum-wage compensation. He asked Ms.
Montenegro if she could find the answer to his minimum pay
question, suggesting she ask Mr. Plaza.
Later that afternoon, Mr. Felix called Mr. Aguirre to his of-
fice for a meeting with Mr. Plaza (the October 28 meeting).
Just prior to the meeting, Mr. Felix told Mr. Plaza that Mr.
Aguirre complained about everything all the time, e.g., about
not trusting the company’s calculation of commissions and not
knowing the vehicle cost. Mr. Plaza, Mr. Felix, and Mr. Mac-
Grew were present for the Respondent at the meeting. All four
participants testified to what occurred there. Because the se-
quence, as well as the substance, of statements made in the
meeting is critical to final determinations herein, a summary of
each account follows:

Mr. Aguirre’s account: Mr. Aguirre initially testified that Mr.
Plaza said, “Nick, you know, you’re asking too many ques-
tions . . . we’re giving you an opportunity to work here and
you’re just asking all these questions about everything . . .
about the price of the vehicles, you’re asking too much infor-
mation.11 You’re asking about the minimum wage. You are
not following policy and procedures. . . You’re being negative
towards the pay . . . you don’t meet our criteria. You’re
fired.” Under further examination, Mr. Aguirre expanded the
scope of the conversation: Mr. Plaza said the cost of vehicles

“[W]hy did you make the comment to Aguirre that, if he didn’t trust the
company, that he should not work for the company?” I accept Mr.
Aguirre’s account of the statement.
9 The parties did not identify the agency’s official title. In its post-
hearing brief, the General Counsel states the correct title is “Industrial
Commission of Arizona.” References to the Labor Commission or
Arizona Labor Board are to the Arizona agency covering wage and
hour issues.
10 Salesman James Pagan testified, essentially, that Mr. Aguirre told
other employees he was looking into the minimum wage question and
that he was going to speak to the Arizona Labor Board. Mr. Pagan
denied that Mr. Aguirre spoke for him, saying, “If I had a problem with
my workplace, I could take care of it myself.”
11 Mr. Plaza did not specifically deny that he accused Mr. Aguirre of
asking too many questions, and his testimony that he told Mr. Aguirre
he was “talking a lot of negative stuff” that would have a negative
impact on the sales force sends an equivalent message, i.e., that Mr.
Aguirre was improperly questioning company practices. I credit Mr.
Aguirre’s testimony in this regard.
was for his eyes and his eyes only and that if Mr. Aguirre did
not like it, he was more than welcome to leave or to quit. Mr.
Plaza said the company paid the salespeople very well and
asked why Mr. Aguirre did not complain when he received a
check for seven or eight hundred dollars to which Mr. Aguirre
expressed concern about payment accuracy. Mr. Aguirre pro-
tested Mr. Plaza’s charge that he did not meet the company’s
criteria, saying he took care of the customers with respect, did
what he was told, moved cars back and forth, did everything
he could, and did the proper paperwork. Mr. Aguirre told Mr.
Plaza he believed Mr. Plaza was upset because he called the
Labor Board.

Only after Mr. Plaza told Mr. Aguirre he was fired, did Mr.
Aguirre respond intemperately, saying “How can you do this
to somebody, especially somebody that works hard that just
had a baby12 . . . this is what I get for trying to succeed.” Mr.
Aguirre told Mr. Plaza he was an “F’ing mother F’ing,” an
“F’ing crook, and an a—hole.” He asked how Mr. Plaza
could fire him just for calling the Labor Board.

Mr. Aguirre asked for his pay since he was being fired. When
Mr. Plaza told him he had up to three days to provide the final
check, Mr. Aguirre said, “You’ll get what’s coming to you if I
don’t get my check.”
13

Mr. Plaza’s account: Mr. Plaza met with Mr. Aguirre because
he understood from Ms. Montenegro that Mr. Aguirre had
raised minimum wage concerns with her and had requested a
meeting. Mr. Plaza had no intention of discharging Mr.
Aguirre.

At the inception of the meeting, Mr. Plaza asked Mr. Aguirre
what was going on, stating that he was concerned because Mr.
Aguirre was “talking a lot of negative stuff” that would have a
negative impact on the sales force. Mr. Aguirre said he had
questions about vehicle costs, sales commissions, and mini-
mum wage. Mr. Plaza told Mr. Aguirre he needed to follow
company policies and procedures, referring to the company’s
pay structure, about which he thought Mr. Aguirre should not
be complaining.14 Mr. Plaza told Mr. Aguirre it was a normal
practice in the car business for employees not to know the
cost of vehicles. Mr. Plaza twice told Mr. Aguirre that if he
did not trust the company, he did not need to work there. Mr.
Aguirre became upset, arose from his chair, and said that Mr.
Plaza was a f— a—hole, that nobody liked him, that he was
f— stupid, that he did not know what he was doing, that he
did not know everyone was talking about him, and that he
thought he could fire anybody he wanted to. Mr. Plaza be-
lieved Mr. Aguirre would have physically attacked him if the
others had not been there. Mr. Plaza asked Mr. Aguirre to

12 Mr. Aguirre’s second child was born October 11. His first child
had just turned two, and Mr. Aguirre was the sole support of his family.
13 Mr. Aguirre testified that he only meant he would call the proper
authorities or organizations to help him get any money due him, but
Mr. Aguirre did not in any way qualify his warning that Mr. Plaza
would get what was coming to him, and I conclude his statement was
menacing.
14 According to Mr. Plaza, Mr. Aguirre was at that time making
more than minimum wage.
PLAZA AUTO CENTER, INC. 501
“calm down, settle down, to quit saying what he was saying.”
When Mr. Aguirre did not comply, and after Mr. Aguirre
called him a f— a—hole for the “tenth time,” Mr. Plaza told
him, “you’re done, Nick.” Mr. Aguirre asked, “You’re going
to f— fire me for calling the Labor Department?”
Mr. Plaza answered, “No, Nick. I’m firing you because you
abused me verbally, almost physically.”

On October 28, following Mr. Aguirre’s discharge, Mr. Plaza
wrote the following memo:

October 28, 2008
(Tuesday) I had a meeting with my managers, Juan &
Gustavo with salesman Nick Aguirre. He had asked to
meet with me as soon as I came in and I also had con-
cerns about his attitude and negative influence to the
rest of my employees. He was always talking negative
about work procedures and everything in general. I
also went over that if he could not follow policy and
procedures according to our policy manual, then he did
not need to work here. I also told him we would not
let him know our investment in each of the vehicles
and again told him he did not have to work here. At
this point he got really upset and every sentence out of
his mouth included the “F” word. I asked him to calm
down but he was out of control and after several uses
of the “F” word I terminated him immediately. We
will not tolerate verbal abuse and in conclusion will
never rehire or refer Nick to anyone who calls for ref-
erences.

Mr. Felix’s account:15 Mr. Plaza told Mr. Aguirre they were
meeting because Mr. Felix and Ms. Montenegro had told him
Mr. Aguirre wanted to speak to him about concerns Mr.
Aguirre had. Mr. Plaza told Mr. Aguirre the Respondent had
rules and policies like every other company, and if an em-
ployee was not happy with the rules, they did not need to
work there. Mr. Aguirre said he had been doing everything
he had been asked to do. Mr. Aguirre told Mr. Plaza why he
wanted to know the cost of the vehicles, and Mr. Plaza said, “I
am just telling you that, if you are not happy here, you don’t
have to work here.” At some point, Mr. Aguirre asked if he
were going to be fired, a question he repeated six or seven
times during the meeting and to which Mr. Plaza invariably
answered, “No.”16

During the course of the meeting, Mr. Aguirre called Mr.
Plaza f— stupid and said that if he got fired, Mr. Plaza was

15 Mr. Felix described the meeting both on direct and cross-
examination. His two accounts vary in certain details and order but are
otherwise consistent.
16 Counsel for the General Counsel argues that Mr. Felix’s testimony
regarding the number of times Mr. Aguirre asked if he were going to be
fired was so hyperbolic that it destroyed Mr. Felix’s credibility. While
it seems unlikely Mr. Aguirre made the inquiry as often as Mr. Felix
estimated, the apparent exaggeration does not destroy Mr. Felix’s
credibility, and I credit Mr. Felix’s testimony that Mr. Plaza denied any
intent to fire Mr. Aguirre.
going to regret it.17 He said Mr. Plaza was f— stupid because
he didn’t even know what people were saying about him out-
side the building. As he was “cussing” Mr. Plaza, Mr.
Aguirre stood up, “threw his chair,” and faced Mr. Plaza. Be-
lieving Mr. Aguirre was going to hit Mr. Plaza, Mr. Felix
stood also, as did Mr. MacGrew. Mr. Plaza said, “You know
what, that’s it, I don’t have to get all this from you.” Mr.
Plaza then told Mr. Aguirre he was done; he was fired. Mr.
Felix and Mr. MacGrew “invited” Mr. Aguirre to leave Mr.
Felix’s office.

Mr. MacGrew’s account:18 At the beginning of the meeting,
Mr. Plaza told Mr. Aguirre that whether or not he liked work-
ing at the company, he needed to follow the company’s pro-
cedures and policies. Mr. Plaza told Mr. Aguirre that if he did
not trust the company, he did not have to work there. Imme-
diately Mr. Aguirre began telling Mr. Plaza he was stupid, did
not know people were talking about him behind his back, was
an a—hole, and f— Mr. Plaza. In the course of the meeting,
Mr. Aguirre repeatedly asked if Mr. Plaza was going to fire
him. Toward the end of the meeting, Mr. Aguirre stood up,
and Mr. Felix and Mr. MacGrew told him that was enough
and that it was time to go. Mr. Plaza also stood and said,
“You know, I don’t need to hear this; you’re done.”

Mr. Felix occasionally used obscene language, including the
“F” word, when directing employees, but Mr. Aguirre had
never heard him do so in Mr. Plaza’s presence. In 2008 the
Respondent fired salesman, Eddie Yemes, because he was
“abusive with foul language” to Mr. Felix while working at a
tent sales event when he told Mr. Felix to f— himself.
V. DISCUSSION
A. Underlying Legal Principles
Section 7 of the National Labor Relations Act provides that
employees have the right to engage in union activities and, in
pertinent part, “the right to . . . engage in . . . concerted activi-
ties for the purpose of collective bargaining or other mutual aid
or protection.” The protection afforded by Section 7 extends to
employee efforts to improve terms and conditions of employ-
ment or otherwise improve their lot as employees. Section
8(a)(1) of the Act provides: “It shall be an unfair labor practice
for an employer to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in section 7.”
To enjoy Section 7 safeguards, employee activity must be
both “concerted” and “protected,” which a propounding party
may prove by showing the activity (1) involves a work-related
complaint or grievance; (2) furthers some group interest; (3)
seeks a specific remedy or result; and (4) is not unlawful or
otherwise improper. NLRB v. Robertson Industries, 560 F.2d
396, 398 (9th Cir. 1976), cited with approval by the Board in
Northeast Beverage Corp., 349 NLRB 1166 fn. 9 (2007). To

17 As noted earlier, Mr. Aguirre admitted to a similar statement (that
Mr. Plaza would “get what’s coming to” him) but placed the threat after
the discharge and in connection with a question about his final pay-
check.
18 Mr. MacGrew’s account, as set forth herein, is an amalgamation of
his direct and cross-examination testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 502
be concerted, employee activity must be engaged in with or on
the authority of other employees, and not solely by and on be-
half of the employee himself. Meyers Industries, 268 NLRB
882 (1986). Concerted activity includes individual activity that
seeks to initiate or to induce or to prepare for group action, as
well as individual employees bringing group complaints to the
attention of management. Meyers Industries, 281 NLRB 882
(1986). Employees do not have to accept the individual’s call
for group action before the invitation itself is considered con-
certed. Cibao Meat Products, 338 NLRB 934 (2003); Whittaker
Corp., 289 NLRB 933, 934 (1988); El Gran Combo, 284
NLRB 1115 (1987). “[C]oncertedness . . . can be established
even though the individual [speaking] was not ‘specifically
authorized’. . . to act as a group spokesperson for group com-
plaints.” Herbert F. Darling, Inc., 287 NLRB 1356, 1360
(1988). Concerted activity includes concerns that are a “logical
outgrowth” of group concerns. Salisbury Hotel, 283 NLRB
685, 687 (1987); Compuware Corporation, 320 NLRB 101
(1995). Work-related complaints or grievances include terms
and conditions of employment19 and concerted complaints to
governmental agencies.20
In cases turning on employer motivation, the Board applies
an analytical framework that assigns the General Counsel the
initial burden of showing protected concerted activity was a
motivating or substantial factor in an adverse employment ac-
tion. The elements commonly required to support such a show-
ing are protected activity by the employee, employer knowl-
edge of that activity, and animus on the part of the employer.
The burden then shifts to the employer to prove, as an affirma-
tive defense, that it would have taken the same action even in
the absence of the employee’s protected activity. Wright Line,
251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); Alton H. Piester, LLC,
353 NLRB 369 (2008).
Even when an employee is engaged in protected activity, he
or she may lose the protection of the Act by egregious behav-
ior, including displaying “an opprobrious or abusive manner.”
Verizon Wireless, 349 NLRB 640, 646 (2007). In assessing
employee behavior asserted to be egregious, the Board consid-
ers four factors: (1) the place of the discussion; (2) the subject
matter of the discussion; (3) the nature of the employee’s out-
burst; and (4) whether the outburst was, in any way, provoked
by the employer’s unfair labor practices. Atlantic Steel, 245
NLRB 814, 816 (1979).21
B. Mr. Aguirre’s Concerted Protected Activities
1. Mr. Aguirre’s concerns about breaks and restroom facilities
Mr. Aguirre’s first day of employment coincided with a
Sears tent sale, where Mr. Aguirre discussed availability of
restroom facilities with fellow salespeople. A few days later,
during a sales staff meeting with management, Mr. Aguirre

19 Valley Hospital Medical Center, 351 NLRB 1250, 1252 (2007).
20 Delta Health Center, Inc., 310 NLRB 26 (1993).
21 Evidence of employer knowledge that activity is protected is not a
necessary element under Alliance Steel Products. The test is whether
employer conduct would interfere with, restrain, or coerce employees
in the exercise of their Sec. 7 rights. Alliance Steel Products at 495.
asked about employee entitlement to breaks and meal periods
during the Sears tent sales. In this concern, Mr. Aguirre was
joined by another salesman who, at a later sales meeting, ex-
pressed dissatisfaction with the Respondent’s breaks and meals
arrangements. Mr. Aguirre continued to raise this and related
concerns with other employees in the ensuing weeks: discuss-
ing alternating restroom breaks, talking about the lack of a rest-
room facility at the Sears tent sales, and complaining about the
inability to leave the work area by car for meals.
Employee breaks and availability of restroom facilities are
employment terms and conditions of general application to
employees. Mr. Aguirre raised those issues with management
during a sales meeting, as did another employee in a later meet-
ing. From those circumstances, as well as Mr. Aguirre’s ongo-
ing related discussions with fellow sales personnel, it is clear
that Mr. Aguirre’s complaints about breaks and restroom facili-
ties were both protected and concerted. Hahner, Foreman &
Harness, Inc., 343 NLRB 1423 (2004) (complaint about pay-
check not compensating for lost benefits to management in the
presence of coworkers); Cibao Meat Products, at 934 (“activity
of a single employee in enlisting the support of his fellow em-
ployees for their mutual aid and protection is as much ‘con-
certed activity’ as is ordinary group activity.” Such individual
action is concerted as long as it is “engaged in with the object
of initiating or inducing . . . group action.” Citations omitted.)
NLRB v. Caval Tool Division, 262 F.3d 184, 190 (2d Cir. 2001)
(enforcing Board order finding employee complaint about
working conditions made in group meeting was protected con-
certed conduct on behalf of the group); Phillips Petroleum
Company, 339 NLRB 916 (2003); Avery Leasing, 315 NLRB
576, 580 fn. 5 (1994) (finding concerted activity where an em-
ployee, in the presence of other employees, complained to
management concerning wages, hours, or other terms and con-
ditions of employment).
Mr. Aguirre’s actions with regard to employee breaks and
restroom facilities, as described herein, constituted concerted
protected activity.
2. Mr. Aguirre’s concerns about sales compensation
Early in his employment, Mr. Aguirre took issue with the
Respondent’s commission-only compensation of sales person-
nel and its calculation of commissions. Expression of his con-
cern included talking with other salespeople about the Respon-
dent’s compensation system, asking Mr. Felix for information
as to which vehicles were likely to produce good commissions,
showing his unexpectedly low first commission to other em-
ployees who agreed the amount was unfair, asking management
about the basis of the commission, discussing with fellow
salespeople his plan to contact an Arizona state agency about
the Respondent’s commission-only policy, contacting the
agency, thereafter sharing the information learned with fellow
employee, telling fellow employees he would inform manage-
ment, and thereafter sharing his findings with Ms. Montenegro.
Wages are clearly an employment term of prominent interest
to employees and employee attention to wages is protected.
Although fellow salesman, James Pagan, denied that Mr.
Aguirre spoke for him in pursuing his wage inquiries, it is clear
Mr. Aguirre attempted to engage the interest of other sales em-
PLAZA AUTO CENTER, INC. 503
ployees, including Mr. Pagan, in his wage inquiries by discuss-
ing with them perceived wage inequities, by telling them of his
state agency information quest, and by alerting them to his
intended confrontation with management. It is equally clear
that the wage issues Mr. Aguirre addressed affected all sales
employees and that the resolutions Mr. Aguirre sought would
impact all sales employees. In these circumstances,
Mr. Aguirre’s involvement with wage issues was concerted.
See Meyers Industries, 281 NLRB 882 (1986) (individual em-
ployees bringing group concerns to the attention of manage-
ment); Cibao Meat Products, supra (concerted action does not
depend on employee acceptance of individual’s call for group
involvement); Salisbury Hotel, supra (concertedness includes
concerns that are a “logical outgrowth” of group concerns);
Compuware Corp., supra (individual employee complaint to
State labor board, although unauthorized by group, was a con-
tinuation of group efforts); JMC Transport, 272 NLRB 545,
546 fn. 2 (1984), enfd. 776 F.2d 612 (6th Cir. 1985) (complaint
about discrepancy in individual paycheck was a continuation of
employees’ protected concerted activity in protesting, a month
earlier, the company’s change in the way employee wage pay-
ments were calculated).
Mr. Aguirre’s actions with regard to sales employee com-
pensation, as described herein, constituted concerted protected
activity.
C. Alleged Threats of Reprisal and Invitations
to Quit Employment
The Complaint alleges that the Respondent violated Section
8(a)(1) of the Act when the following supervisors on the fol-
lowing dates threatened employees by inviting them to quit
their employment:

Mr. Felix — September 3 and October
Ms. Montenegro — October 28
Mr. Plaza — October 28

At a late August/early September sales staff meeting, when
Mr. Aguirre asked about employee breaks during Sears tent
sales, Mr. Felix told him that if he did not like the way the
company operated, he was welcome to leave at any time. At a
Sears tent sale in mid-September, Mr. Aguirre discussed with
other employees how to alternate restroom use. In the presence
of two other salesmen, Mr. Aguirre asked Mr. Felix for permis-
sion to take a meal break and use the restroom. Telling all
three salesmen that the sales staff was always on a break, Mr.
Felix refused Mr. Aguirre’s request, saying that if Mr. Aguirre
did not like it, he could just leave.22 At another Sears tent sale
held sometime in October, when Mr. Aguirre asked Mr. Felix
to identify cars whose sale would deliver good commissions,
Mr. Felix replied that employees who do not trust in the com-
pany should leave its employ.
On October 28, when Mr. Aguirre, after conferring with fel-
low employees, asked Ms. Montenegro about the sales staff’s
entitlement to a minimum wage draw against commissions, Ms.
Montenegro told him that if he wanted a minimum wage job,

22 Although the record shows this exchange to have occurred in mid-
September, it fits within the time parameters of complaint allegation
4(c) that such a threat was made “in or about October 2008.”
the sales job was not the job for him. Later that same day, dur-
ing the course of his meeting with Mr. Aguirre, Mr. Plaza told
Mr. Aguirre that if he did not like the company’s refusal to
divulge vehicle costs, he was more than welcome to leave or to
quit, and Mr. Plaza twice told Mr. Aguirre that if he did not
trust the company, he did not need to work there.
An employer that responds to protected concerted protests of
working conditions by telling employees they can leave if they
do not like the conditions coerces employees within the mean-
ing of Section 8(a)(1) of the Act. Inviting employees to quit
their employment in such circumstances interferes with the free
exercise of employees’ Section 7 right to protest working con-
ditions. Alton H. Piester, LLC, 353 NLRB 369 (2008); House
Calls, Inc., 304 NLRB 311, 313 (1991); Chinese Daily News,
346 NLRB 906 (2006); McDaniel Ford, Inc., 322 NLRB 956
fn. 1 (1997) (“It is well settled that an employer’s invitation to
an employee to quit in response to their exercise of protected
concerted activity is coercive, because it conveys to employees
that . . . engaging in . . . concerted activities and their continued
employment are not compatible, and implicitly threatens dis-
charge of the employees involved.”)
Mr. Felix, Ms. Montenegro, and Mr. Plaza’s suggestions to
Mr. Aguirre that he cease working for the Respondent if he did
not like its terms and conditions of employment were made in
response to his protected concerted activities described above.
As such, the suggestions were coercive. Accordingly, the Re-
spondent’s conduct in this regard violated Section 8(a)(1) of the
Act as alleged in the complaint.
The complaint further alleges the Respondent violated Sec-
tion 8(a)(1) of the Act when Mr. Plaza threatened employees
with unspecified reprisals. The basis for the allegation is
Mr. Plaza’s statement to Mr. Aguirre in the October 28 meeting
that he was “asking too many questions [about company poli-
cies].” The General Counsel argues this statement alone impli-
edly threatened reprisals if Mr. Aguirre persisted in the pro-
tected activity of questioning company practices. While Mr.
Plaza expressed displeasure with Mr. Aguirre’s protected in-
quiries and thereby evidenced animus toward those activities, it
is too great a stretch to categorize the statement as a threat.
Accordingly, I will dismiss that allegation of the complaint.
D. Discharge of Nick Aguirre
The General Counsel argues that the only reason the Re-
spondent discharged Mr. Aguirre was because of the negative
influence Mr. Plaza believed Mr. Aguirre’s protected activities
had on other employees. The Respondent argues that the only
reason the Respondent terminated Mr. Aguirre was his physi-
cally intimidating and abusive behavior in the October 28 meet-
ing. Determining the Respondent’s motivation requires a
Wright Line analysis. If the Respondent’s argument is ac-
cepted, determining whether Mr. Aguirre’s behavior at the
October 28 meeting justified his discharge requires an Atlantic
Steel

analysis.23
Many of the facts surrounding Mr. Aguirre’s discharge are
not disputed: On October 28, Mr. Aguirre told Ms. Montenegro

23 See Alton H. Piester, supra; Waste Management of Arizona, Inc.,
345 NLRB 1339 (2005).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 504
he had learned from an Arizona State agency that the Respon-
dent was improperly withholding minimum wage compensation
from its commissioned salespeople. Ms. Montenegro thereafter
arranged the October 28 meeting. Just prior to the meeting, Mr.
Felix told Mr. Plaza that Mr. Aguirre complained about every-
thing all the time, e.g., about not trusting the company’s calcu-
lation of commissions and not knowing the vehicle cost. At the
meeting, Mr. Plaza criticized Mr. Aguirre’s negative attitude
toward company policies and procedures. Mr. Plaza told Mr.
Aguirre that if he did not trust the company, he did not need to
work there. During the course of the meeting, Mr. Aguirre
became upset and, according to the various accounts, told Mr.
Plaza that he was a “F’ing mother F’ing,” a “F’ing crook,” and
an a—hole, that he was stupid, that nobody liked him, and that
everyone was talking about him behind his back. At some
point in the meeting, Mr. Plaza fired Mr. Aguirre.
There remain two critical factual disputes as to what hap-
pened at the October 28 meeting: (1) At what point in the meet-
ing did Mr. Plaza fire Mr. Aguirre? (2) What were the circum-
stances and manner of Mr. Aguirre’s outburst? The General
Counsel’s position is that Mr. Plaza fired Mr. Aguirre before
Mr. Aguirre verbally assailed Mr. Plaza and that, given the
Respondent’s unlawful conduct, Mr. Aguirre engaged in no
unjustifiable behavior. The Respondent’s position, on the other
hand, is that Mr. Aguirre’s threatening and volatile verbal at-
tack both preceded and was the direct cause of Mr. Aguirre’s
discharge.
I have carefully considered the testimonies of all witnesses to
the October 28 meeting. In doing so, I have taken into account
the witnesses’ manner and demeanor while testifying, as well as
the circumstances surrounding the discharge. I give greater
weight to the testimonies of Mr. Plaza, Mr. Felix, and Mr. Mac-
Grew. While discrepancies exist in each of their accounts, I
found the three management witnesses demonstrated efforts to
convey honest, unbiased recollections of the meeting. Mr.
Aguirre’s testimony was not as believable. Mr. Aguirre initially
testified that at the October 28 meeting, Mr. Plaza bluntly item-
ized his displeasure with Mr. Aguirre’s activities and abruptly
fired him. Under further questioning, Mr. Aguirre significantly
expanded his account of what occurred at the meeting, including
Mr. Plaza’s statement that if Mr. Aguirre did not like being kept
in ignorance of vehicle cost, he was more than welcome to leave
or to quit. Not only was Mr. Aguirre’s initial testimony not fully
congruous with his expanded version of the meeting, Mr. Plaza’s
implicit invitation to Mr. Aguirre to accept company policy or
quit is incompatible with Mr. Aguirre’s earlier testimony of
abrupt discharge. Accordingly, I do not credit Mr. Aguirre’s
account of the October 28 meeting where it conflicts with the
accounts of Mr. Plaza, Mr. Felix, and Mr. MacGrew.
Mr. Plaza testified he had no intention of firing Mr. Aguirre
when he began the October 28 meeting and, until the conclusion
of the meeting, told Mr. Aguirre he was not being fired. Consis-
tent with the credibility assessments herein, I accept Mr. Plaza’s
testimony. Mr. Plaza, Mr. Felix, and Mr. MacGrew, whose tes-
timonies I have credited, were consistent in placing Mr. Aguirre’s
verbal outburst before Mr. Plaza announced his discharge.
Therefore, I find that Mr. Aguirre’s denouncement of Mr. Plaza
preceded Mr. Aguirre’s discharge. I further find that Mr.
Aguirre’s behavior in cursing and derogating Mr. Plaza was at
least physically aggressive if not menacing.24
A finding that Mr. Aguirre verbally attacked Mr. Plaza before
rather than after Mr. Plaza fired him on October 28, does not, of
course, automatically resolve the issue of why the Respondent
fired Mr. Aguirre. The question remains whether the Respondent
fired Mr. Aguirre solely because he engaged in concerted pro-
tected activities, as counsel for the General Counsel contends, or
whether, as the Respondent contends, the Respondent fired Mr.
Aguirre because he insulted Mr. Plaza. Since the existence of an
arguably valid reason for discharge cannot, in and of itself, ex-
punge an unlawful reason, the Respondent’s motivation must be
determined by application of a Wright Line analysis.
The General Counsel has proven the elements required by
Wright Line: the General Counsel has shown that Mr. Aguirre
engaged in concerted protected activity, that the Respondent’s
managers knew of the activity, and that the Respondent bore
animus toward the activity, as demonstrated by management’s
repeated suggestions that unhappy employees seek employment
elsewhere. The General Counsel having met his initial burden,
the burden of proof shifts to the Respondent to prove it would
have fired Mr. Aguirre even in the absence of his protected activ-
ity.
The Respondent contends that irrespective of Mr. Aguirre’s
protected activity, Mr. Plaza would have fired him for his profane
personal attack at the October 28 meeting. There is no question
that Mr. Aguirre’s behavior could reasonably be expected to
provoke discharge. However, “[a]n employer cannot simply
present a legitimate reason for its action but must persuade by a
preponderance of the evidence that the same action would have
taken place even in the absence of the protected activity.” Yellow
Ambulance Service, 342 NLRB 804, 804 (2004), citations omit-
ted. In 2008, Mr. Plaza directed Mr. Felix to fire salesman Eddie
Yemes because he told Mr. Felix to f— himself. Considering
that Mr. Aguirre’s October 28 contumely was directed at Mr.
Plaza himself and was more extensive and opprobrious than
Eddie Yemes’ outburst, it is reasonable to conclude that the Re-
spondent would have fired Mr. Aguirre for his verbal attack on
Mr. Plaza regardless of the Respondent’s animosity toward Mr.
Aguirre’s protected activity. Accordingly, I find the Respondent
has met its shifted burden under Wright Line and has shown that
it fired Mr. Aguirre because he verbally abused Mr. Plaza.
A finding that the Respondent fired Mr. Aguirre because of
his October 28 outburst does not lay the discharge issue to rest.
The purpose of the October 28 meeting was to address Mr.
Aguirre’s complaints about the Respondent’s sales compensa-
tion practices. Mr. Aguirre’s participation in the meeting was a
furtherance of his concerted, protected wage complaints. At the
meeting, Mr. Aguirre engaged in behavior the Respondent con-
tends was opprobrious. “An employer violates the Act by dis-
charging an employee engaged in the protected concerted activ-

24 In finding Mr. Aguirre’s behavior to be belligerent, I rely on cred-
ited testimony that in the course of his outburst and prior to the dis-
charge, Mr. Aguirre rose from his chair, pushed it aside and said that if
he was fired, Mr. Plaza would regret it. As noted earlier, Mr. Aguirre
admitted to menacing language—“You’ll get what’s coming to you”—
although in a different context.
PLAZA AUTO CENTER, INC. 505
ity of voicing a complaint about his employment terms unless,
in the course of that protest, the employee engages in opprobri-
ous conduct, costing him the Act’s protection.” Alton H. Pi-
ester, LLC, supra at 374. Although I have found that the Re-
spondent fired Mr. Aguirre because of his contumacious behav-
ior in the October 28 meeting, it must yet be determined
whether Mr. Aguirre’s behavior was so egregious as to lose the
Act’s protection. See Verizon Wireless, 349 NLRB 640, 646
(2007).
In assessing employee behavior asserted to be egregious, the
four factors enunciated in Atlantic Steel25 must be considered:
(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 em-
ployer’s unfair labor practices.
Considering the first factor, Mr. Aguirre’s outburst occurred in
the presence of management only, and there is no evidence any
unit employee overheard the confrontation. The outburst, there-
fore, had no impact on workplace discipline, nor did Mr.
Aguirre’s offensive behavior undermine management authority.
The place of the discussion, thus isolated from other workers,
argues against loss of protection.26 As to the second and fourth
factors, the discussion related wholly to Mr. Aguirre’s protected
concerted activity. Further, Mr. Aguirre’s outburst was contem-
poraneous with both the Respondent’s censure of Mr. Aguirre’s
protected activity as “a lot of negative stuff” that negatively im-
pacted the sales force and the Respondent’s coercive conduct in
pointing out that Mr. Aguirre did not have to work for the Re-
spondent if he did not like or trust the company. Both statements
are provocative, and the latter, as detailed above, is an unfair
labor practice. The subject matter of the discussion, intertwined
as it was with the Respondent’s intrinsically provocative unfair
labor practice, also militates against loss of protection.27 Accord-
ingly, the first, second, and fourth Atlantic Steel factors weigh in
favor of protection.
The third factor, the nature of Mr. Aguirre’s outburst, is not so
easily resolved. Board law establishes that “employees are per-
mitted some leeway for impulsive behavior when engaging in
concerted activity, subject to the employer’s right to maintain
order and respect [citation omitted].” Tampa Tribune, 351 NLRB
1324, 1324–1325 (2007), enf. Denied sub nom. Media General
Operations, Inc. v. NLRB, 560 F. 3d 181 (4th Cir. 2009).28 The

25 Atlantic Steel, supra at 816.
26 Remarks made in private are less disruptive to workplace disci-
pline than those made in the presence of fellow employees. Stanford
Hotel, 344 NLRB 558 (2005); Noble Metal Processing, 346 NLRB
795, 800 (2006) (place of discussion weighs in favor of protection
where outburst occurred away from employees’ work area and did not
disrupt the work process).
27 Care Initiatives, 321 NLRB at 152 (“[A]n employer may not rely
on employee conduct that it has unlawfully provoked as a basis for
disciplining an employee [citation omitted]”); Datwyler Rubber &
Plastics, 350 NLRB 669, 669–670 (2007) (employee did not lose pro-
tection of the Act by calling supervisor a devil whom Jesus Christ
would punish for requiring a 7-day work week); Stanford Hotel, supra
(brief profanity protected where it was a response to unlawful threats).
28 The protections of Sec. 7 would be meaningless were the Board
not to take into account the realities of industrial life and the fact that
disputes over wages, bonus, and working conditions are among the
standard for determining whether specified conduct is removed
from the protection of the Act is whether the conduct is “so vio-
lent or of such serious character as to render the employee unfit
for further service.” St. Margaret Merry Healthcare Centers, 350
NLRB 203, 204–205 (2007); Dreis Rump Mfg. v. NLRB, 544
F.2d 320, 324, (7th Cir. 1976). Insulting profanity alone is not so
egregious as to justify loss of the Act’s protection.29 However,
repeated use of profanity in a loud ad hominem attack on a su-
pervisor may lose the Act’s protection. Daimler Chrysler Corp.,
344 NLRB 1324, 1329–1330 (2005).
The question is whether, in the instant circumstances, Mr.
Aguirre retained the Act’s protection in spite of his outburst or
lost the Act’s protection because of his outburst. In Daimler
Chrysler Corp., supra, the behavior that cost an employee the
Act’s protection was the making of repeated, extensive, and per-
sonally derogatory statements to a supervisor, behavior similar to
Mr. Aguirre’s. However, Daimler differs from the instant situa-
tion in that only one Atlantic Steel factor—subject matter—
favored protection, while here three of the four Atlantic Steel
factors favor protection with only the nature of Mr. Aguirre’s
outburst weighing against protection.
Notwithstanding the fact that only one Atlantic steel factor dis-
favors Mr. Aguirre’s protection in this case, the impact of that
sole factor must not be minimized. It is clear the Board carefully
considers the form and scope of offensive language in opprobri-
ous behavior cases.30 Upon court remand of Felix Industries31,
the Board considered the question of whether the nature of an
employee’s outburst (factor three), by itself, may outweigh the
other Atlantic Steel factors. The Board stated that “the nature of
[an employee’s] outburst must be given considerable weight
towards losing the Act’s protection.” Felix Industries, 339 NLRB
195, 196 (2003). While the Board in Felix Industries decided
that the other factors outweighed factor three in that case, the

disputes most likely to engender ill feelings and strong responses. Con-
sumers Power Co., 282 NLRB 131, 132 (1986).
29 See Alcoa Inc., 352 NLRB 1222 (2008), (referring to supervisor as
“egoistical f—er”); Tampa Tribune supra, (calling supervisor a “stupid
f—ing moron.”); Union Carbide Corp., 331 NLRB 356, 359 (2000)
(calling supervisor a “f—ing liar”); Burle Industries, 300 NLRB 498,
502, 504 (1990) (calling supervisor a “f—ing a—hole”); Thor Power
Tool Co., 148 NLRB 1379, 1380 (1964), enfd. 351 F. 2d 584 (7th Cir.
1965), (referring to supervisor as a “horse’s ass”); Postal Service, 241
NLRB 1074 (1979) (referring to acting supervisor as an “a—hole”);
NLRB v. Cement Transport Co., 490 F.2d 1024, 1030 (6th Cir. 1974)
(referring to company president as a “son of a bitch”).
30 See, e.g., Alcoa, Inc., at 1226 (employee/union steward’s pejora-
tive description of a supervisor as an “egotistical f—er” was “a single
verbal outburst of profane language, in a disciplinary meeting . . . unac-
companied by physical contact or threat of physical harm,” which did
not destroy the Act’s protection); Beverly Health & Rehabilitation
Services, 346 NLRB 1319, 1323 (2006) (employee conduct “consisted
of a brief, verbal outburst of profane language unaccompanied by in-
subordination, physical contact, or threat of physical harm); Trus Joist
Macmillan 341 NLRB 369, 371–372 (2004) (employee’s repetitious
remarks that were personal and highly offensive cost him the protection
of the Act); Datwyler Rubber & Plastics, Inc., supra, (employee out-
burst protected, as it was spontaneous, brief, and unaccompanied by
physical contact or threat of physical harm).
31 Felix Industries, 331 NLRB 144, 146 (2000), enf. denied and re-
manded 251 F.3d 1051 (D.C. Cir. 2001).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 506
Board emphasized that the supervisor involved, who was also the
son of the company’s president, directed “extremely hostile”
remarks to the employee, provoking his response that the super-
visor was just a “f—ing kid” to whom the employee did not have
to listen. Id. at 195, 196–197.
In applying the balancing test utilized by the Board in these
kinds of cases, I have particularly noted the following circum-
stances: Mr. Aguirre’s outburst was qualitatively and quantita-
tively more opprobrious than that considered in Felix Industries.
Without extreme provocation from overt hostility or antagonism
from Mr. Plaza, Mr. Aguirre repeatedly reviled Mr. Plaza in ob-
scene and personally denigrating terms accompanied by menac-
ing conduct and language. Considering these circumstances and
the record as a whole, I find that Mr. Aguirre’s behavior at the
October 28 meeting was so egregious as to forfeit the protection
of the Act. Accordingly, I find the Respondent did not violate the
Act when it discharged Mr. Aguirre.
VI. CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce and
in a business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by tell-
ing employees they could quit or leave the Respondent’s employ
if they did not like company policies and/or procedures.
3. The unfair labor practices set forth above affect commerce
within the meaning of Section 8(a)(3) and (1) and Section 2(6)
and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the poli-
cies of the Act.
[Recommended Order omitted from publication.]