- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Employment Law
- Date Filed: 12-19-2011
- Case #: 10-72728; 10-73125
- Judge(s)/Court Below: Senior District Judge Quist for the Court; Circuit Judges Graber and Ikuta
- Full Text Opinion
Aguirre, an employee of Plaza Auto Center ("PAC"), questioned his supervisors about compensation. Aguirre was called into a meeting with his supervisors and was informed that he was free to quit his employment with PAC if he disliked the compensation policy. Aguirre responded by losing his temper and "berating Plaza." Aguirre was fired. An administrative law judge determined that "although Aguirre was engaged in protected activity during the . . . meeting, his obscene remarks and personal attacks on Plaza cost him the Act's protection." The General Counsel reversed, finding "that Aguirre's conduct was not so severe as to cause him to lose his statutory protection." PAC appealed the ruling and the NLRB cross-appealed seeking enforcement of its order. The Court reviewed the factors from Atlantic Steel "to determine whether an employee's conduct results in a loss of protection." In interpreting the third factor (nature of the outburst), the Court held that "'if an employee is fired for denouncing a supervisor in obscene, personally-denigrating, or insubordinate terms . . . then the nature of his outburst properly counts against according him the protection of the Act.'" Because the General Counsel appeared to have presumed that "an employee's outburst does not factor into the loss of the Act's protection unless accompanied by physical conduct," the Court remanded the evaluation of this factor and it's balancing against the remaining factors. PETITION GRANTED AND REMANDED; ORDER ENFORCED IN PART.