Plaza Auto Center, Inc.

National Labor Relations Board - Board Decisions

May 28, 2014

360 N.L.R.B. 972 (N.L.R.B. 2014)

972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 117
Plaza Auto Center, Inc. and Nick Aguirre. Case 28–
CA–022256
May 28, 2014
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
This case is before the Board on remand from the
United States Court of Appeals for the Ninth Circuit for
the Board to reapply the four-factor Atlantic Steel test1
for determining when an employee’s outburst during
protected activity costs the employee the protection of
the Act. See Plaza Auto Center, Inc. v. NLRB, 664 F.3d
286 (9th Cir. 2011). We find, for the reasons set forth
below and in full consideration of the terms of the court’s
remand, that employee Nick Aguirre did not lose the
protection of the Act by his outburst and, accordingly,
that the Respondent unlawfully discharged him for en-
gaging in protected concerted activity.2
I. FACTS AND PROCEDURAL HISTORY
As recounted by the court in its opinion (664 F.3d at
289–291), the Respondent sells used cars in Yuma, Ari-
zona, and is owned by Tony Plaza (Plaza). The Re-
spondent has two sales managers, Juan Felix (Felix) and
Gustavo MacGrew (MacGrew), and an officer manager,
Barbara Montenegro (Montenegro). The Respondent
hired Charging Party Nick Aguirre (Aguirre) as a sales-
man at the end of August 2008, and fired him on October
28, 2008. During his brief tenure in the Respondent’s
employ, Aguirre spoke with his fellow employees and
managers about the Respondent’s policies concerning
breaks, restroom facilities, and compensation.

1 Atlantic Steel Co., 245 NLRB 814 (1979).
2 On August 16, 2010, the National Labor Relations Board issued its
Decision and Order in this proceeding, finding that the Respondent
violated Sec. 8(a)(1) of the Act by telling employees that they could
quit or leave the Respondent’s employ if they did not like the Respond-
ent’s policies and/or procedures and by discharging employee Nick
Aguirre for engaging in protected concerted activity. 355 NLRB 493,
496 (2010).
The Respondent filed a petition for review of the Board’s Order with
the United States Court of Appeals for the Ninth Circuit and the Board
filed a cross-application for enforcement. On December 19, 2011, the
court issued its decision granting the Respondent’s petition for review
in part, enforcing the Board’s Order in part, and remanding the case to
the Board. 664 F.3d at 289.
By letter dated May 30, 2012, the Board notified the parties that it
had accepted the remand and invited the parties to file statements of
position. Thereafter, the Respondent and the Acting General Counsel
filed statements of position.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has reviewed the entire record in light of the court’s re-
mand, which constitutes the law of the case.
On his first day on the job, Aguirre worked at a tent
sale conducted in a parking lot of a Sears store. During
his shift, when Aguirre inquired about bathroom facili-
ties, Manager Felix pointed to the Sears store and a gas
station across the street. In a sales meeting the following
week, Aguirre asked whether salespeople could take a
break to use the bathroom and eat a meal during tent
sales. Felix responded, “[Y]ou’re always on break buddy
. . . you just wait for customers all day.” Felix also told
Aguirre that he was free to leave at any time if he did not
like the Respondent’s policies.
During the Respondent’s next tent sale in mid-
September, Aguirre spoke with other salespeople about
the Respondent’s compensation policy. They informed
Aguirre that salespeople were paid a straight commission
with no draw or guaranteed minimum. In other words,
salespeople were not paid the minimum wage and had to
rely solely on their sales commissions. Aguirre also
raised the issue of a system for salespeople to alternate
bathroom breaks, but when Aguirre asked Felix for a
break to use the bathroom and get something to eat, Felix
refused, reiterating that the salespeople were “always on
a break.”
At the next sales meeting, an employee other than
Aguirre raised the issue of compensation. Sales Manager
MacGrew responded that if employees did their jobs cor-
rectly and followed all of the procedures, they would
make money. Sometime thereafter, Aguirre sold a vehi-
cle listed on the Respondent’s “flat list”—a list of vehi-
cles that carried a special commission because they were
difficult to sell. A similar vehicle was listed on the “flat
list” with a commission of between $1000 to $2000. To
Aguirre’s surprise, however, he received a check for only
$150. His fellow employees agreed that it was unfair.
Aguirre confronted Felix about the size of the check, but
Felix responded that the commission was low because
Aguirre had given the vehicle away almost for free.
At another sales meeting, Plaza informed the salespeo-
ple that he was going to deduct the repair costs for a
damaged vehicle equally from all salespeople’s
paychecks if no one admitted responsibility. Aguirre
responded that it would be unfair to charge only the
salespeople instead of all employees who had access to
the vehicle. Plaza then spoke about employee negativity
and stated that he had a stack of applications from pro-
spects whom the Respondent could easily hire as sales-
people.
In October, at another tent sale, Aguirre asked Felix
which vehicles would produce a good commission;
Aguirre thought that the Respondent was stealing money
from him in calculating his commissions. Felix respond-
ed that Aguirre was welcome to go elsewhere if he did
PLAZA AUTO CENTER, INC. 973
not trust the Respondent. Around the same time, Aguirre
obtained information relating to the Respondent’s com-
pensation system from Arizona’s wage and hour agency.
Aguirre told his coworkers that the agency advised him
that the salespeople were entitled to the minimum wage
as a draw against commissions and that he intended to
speak with the Respondent’s office manager, Montene-
gro, about this issue.
On October 28, Aguirre asked Montenegro whether
the Respondent’s salespeople were entitled to a mini-
mum-wage draw. Montenegro responded that the Re-
spondent did not pay minimum wage and that Aguirre
should work elsewhere if he wanted a minimum wage
job. Aguirre informed Montenegro that he had spoken
with the state wage agency about a draw and asked her to
look into the issue, perhaps by asking Plaza.
Later that afternoon, Felix informed Plaza that Aguirre
complained about everything all the time and wanted to
know Respondent’s vehicle costs because he did not trust
the Respondent’s calculation of his sales commissions.
Felix then called Aguirre into Felix’s office to meet with
Felix, MacGrew, and Plaza. At the beginning of the
meeting, Plaza had no intention of firing Aguirre. Plaza
began the meeting by telling Aguirre that he was “talking
a lot of negative stuff” that would negatively affect the
sales force and that he was asking too many questions.
Aguirre responded that he had questions about vehicle
costs, commissions, and minimum wage. Plaza told
Aguirre that he had to follow the Respondent’s policies
and procedures, that car salespeople normally do not
know the dealer’s cost of vehicles, and that he should not
be complaining about 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 “fuck-
ing mother fucking,” a “fucking crook,” and an “ass-
hole.” 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 Aguir-
re.3
Following an evidentiary hearing, Administrative Law
Judge Lana H. Parke issued a decision finding that the
Respondent had violated Section 8(a)(1) several times by
inviting Aguirre to quit in response to his protected pro-
tests of working conditions. Applying Atlantic Steel,

3 After the Respondent discharged Plaza, the State agency contacted
the Respondent concerning minimum wage requirements. According
to Montenegro and Plaza, the Respondent then “corrected the issues
regarding the minimum wage,” and now provides its salespeople with a
minimum wage draw against commission.
however, the judge concluded that although Aguirre was
otherwise engaged in protected activity during the Octo-
ber 28 meeting with management, he lost the protection
of the Act by his “belligerent” behavior of repeatedly
reviling the Respondent’s owner Plaza “in obscene and
personally denigrating terms accompanied by menacing
conduct and language.” 355 NLRB at 504 fn. 24, 506.
The Acting General Counsel filed exceptions to the
judge’s dismissal of the complaint allegation that the
Respondent unlawfully discharged Aguirre. The Board’s
original decision concluded that Aguirre’s conduct was
not so severe as to cause him to lose his statutory protec-
tion. In reaching that conclusion, the Board4 found that
all four Atlantic Steel factors, including the nature-of-the-
outburst factor, weighed in favor of protection. Accord-
ingly, the Board held that the Respondent had violated
Section 8(a)(1) by discharging Aguirre. 355 NLRB at
496.
The Respondent filed a petition for review, and the
Board filed a cross-application to enforce, the Board’s
Order in the United States Court of Appeals for the Ninth
Circuit. The court agreed with the Board that three of the
four Atlantic Steel factors—the place of the discussion,
the subject matter of the discussion, and employer prov-
ocation by unfair labor practices—supported the Board’s
conclusion that Aguirre’s outburst did not cost him the
protection of the Act. See Plaza Auto Center, Inc. v.
NLRB, 664 F.3d at 292–295. However, the court con-
cluded that the Board had “erred in its initial assessment”
that the nature-of-the-outburst factor weighed in favor of
protection. Id. at 296. After reviewing Board precedent,
the court found that Aguirre’s obscene and personally
denigrating remarks to Plaza, which the court found were
also insubordinate, counted against his retaining the
Act’s protection. Id. at 293–294. Accordingly, the Court
found it “necessary to remand this matter to the Board to
allow it to properly consider whether the nature of Aguir-
re’s outburst caused him to forfeit [the Act’s] protec-
tion.” Id. at 294.
The court also directed that in rebalancing the Atlantic
Steel factors on remand, the Board should either adopt
the judge’s additional findings that Aguirre’s behavior
was “belligerent,” “menacing,” and “at least physically
aggressive if not menacing” in the small room where the
outburst occurred or “reject, with a reasoned explana-
tion,” those additional findings. Id. at 295. The court
found that the Board’s decision was “internally incon-
sistent” in its treatment of the judge’s findings regarding
the October 28 outburst. Ibid. In particular, the court

4 Chairman Liebman and Member Pearce; Member Schaumber dis-
senting.
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
found that while the Board stated that it was adopting the
judge’s credibility and factual findings regarding the
October 28 meeting, the Board actually had rejected the
judge’s findings that Aguirre’s conduct was “belliger-
ent,” “menacing,” and “at least physically aggressive if
not menacing.” Ibid. The court noted that the Board had
also stated that it would have reached the same result
even if the nature-of-the-outburst factor weighed against
retention of the Act’s protection, but concluded that it
could not be certain that the Board would have reached
the same result if the Board had adopted the judge’s ad-
ditional belligerence finding. Ibid.5
The court’s opinion thus makes clear that before re-
balancing the Atlantic Steel factors, we must first deter-
mine the nature of Aguirre’s outburst, namely whether it
solely involved obscene and denigrating remarks that
constituted insubordination, or whether it also was men-
acing, physically aggressive, or belligerent. After care-
fully reviewing the decision and record in light of the
parties’ submissions and the court’s opinion, we first
conclude, as discussed below, that Aguirre did not en-
gage in menacing, physically aggressive, or belligerent
conduct. Second, after rebalancing the Atlantic Steel
factors as directed by the court, we conclude that Aguirre
did not lose the protection of the Act, even though the
nature of his outburst weighs against protection by virtue
of Aguirre’s use of obscene and personally denigrating
language. The remaining three Atlantic Steel factors
compellingly favor Aguirre’s retaining protection.
II. ANALYSIS
A. Judged Under the Applicable Legal Standard,
Aguirre’s Outburst was not Menacing,
Physically Aggressive, or Belligerent
The administrative law judge found that there were
two critical issues regarding what happened during the
October 28 meeting. 355 NLRB at 504. The first was
whether the Respondent fired Aguirre before or after his
outburst. Based on her credibility determinations, the
judge found that the outburst occurred before the dis-
charge. Ibid.
The second critical issue for the judge concerned the
circumstances and manner of Aguirre’s outburst. 355
NLRB at 504. The judge first found that during the
course of the meeting, Aguirre used profane and deroga-
tory language toward Plaza. Ibid. The judge further
found that Aguirre’s behavior was “at least physically

5 The court enforced the Board’s finding (355 NLRB at 496, 506)
that the Respondent violated Sec. 8(a)(1) by telling employees that they
could quit or leave the Respondent’s employ if they did not like the
Respondent’s policies and/or procedures. See Plaza Auto Center, Inc.
v. NLRB, 664 F.3d at 295–296.
aggressive, if not menacing.” The judge explained the
basis for that further finding as follows (355 NLRB at
504 fn. 24):
In finding Mr. Aguirre’s behavior to be belligerent, I
rely on credited testimony that in the course of his out-
burst and prior to the discharge, 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.
In assessing the nature of Aguirre’s conduct, we em-
phasize that we accept all of the judge’s credibility de-
terminations (355 NLRB at 504 & fn. 24), in particular,
that (1) Aguirre’s outburst occurred before, rather than
after, the Respondent fired him; (2) Aguirre told Plaza
that if he were fired, Plaza would regret it; and (3) Aguir-
re rose from his chair and pushed it aside in the small
room where the outburst occurred.
The question remains, however, whether that conduct
was menacing, physically aggressive, or belligerent. As
the United States Court of Appeals for the District of
Columbia Circuit has observed, settled precedent tasks
the Board with “using an objective standard,” rather than
a subjective standard, to determine whether challenged
conduct is threatening. Kiewit Power Constructors Co.
v. NLRB, 652 F.3d 22, 29 fn. 2 (D.C. Cir. 2011), enfg.
355 NLRB 708 (2010). Accordingly, Plaza’s testimony
that he feared for his safety and the safety of his employ-
ees as a result of Aguirre’s conduct is not determinative.
Id. at 28–29 & fn. 2. And because the question of
whether Aguirre engaged in menacing, physically ag-
gressive, or belligerent conduct is judged under an objec-
tive standard, there simply is no merit to the Respond-
ent’s suggestion that any Board determination to the con-
trary necessarily would amount to overturning the
judge’s credibility determinations.
We believe that the Board and court decisions in Kie-
wit Power Constructors are instructive regarding the role
a judge’s credibility determinations play in determining
the nature of an employee’s outburst. Kiewit involved
employee protests against their employer’s enforcement
of a “break-in-place” policy, which the employees be-
lieved required them to take their breaks in dirty and un-
safe areas. 355 NLRB at 715–717. A superintendent
testified that when he began distributing warning notices
and told employees that they would be written up yet
again if they violated the policy later the same day, em-
ployee Judd replied in an angry voice, “I’ve been out of
work for a year. If I get laid off it’s going to get ugly and
you better bring your boxing gloves.” Id. at 716–717.
Employee Bond then said, “Yeah, I’ve been out of work
PLAZA AUTO CENTER, INC. 975
for eight months, it’s going to get ugly.” Id. at 717. The
superintendent also testified that he believed that both
employees were physically threatening him. Ibid. The
employer subsequently fired the two employees, claim-
ing they had physically threatened the superintendent.
Id. at 717–718. However, the employees denied saying
anything about boxing gloves or that things would get
ugly if they lost their jobs over the break issue. Id. at
717. Instead, according to the employees, they merely
said that there would be “consequences” or “repercus-
sions,” and that when they used those words, they merely
intended to convey the notion that the union would not
stand for the warnings or the employer’s break-in-place
policy. Id. at 719.
The administrative law judge concluded in large part
that the case “ultimately boil[ed] down to which of the
sharply conflicting versions” of the employees’ respons-
es to the warnings should be credited. Id. at 720. The
judge credited the superintendent’s version both as to
what was said and how he perceived the employees’
comments; found that the employees had angrily made
outright threats; and, applying Atlantic Steel, found that
the discharges were lawful. Ibid.
On appeal, the Board did not reverse the judge’s credi-
bility determination that the employees had in fact made
the statements attributed to them by the superintendent.
Nor did the Board reverse the judge’s decision to credit
the superintendent’s testimony that he felt threatened. Id.
at 708 fn. 1, 710–711. Nevertheless, the Board found
that the statements did not constitute physical threats. Id.
at 710. The Board reasoned in part (ibid):
Although intemperate, they were not unambiguous or
“outright” . . . threats of physical violence. To the con-
trary, the employees’ prediction that things could “get
ugly” reasonably could mean nothing more than that
the Respondent’s continuation of the disciplinary en-
forcement of its break-in-place policy would engender
grievances or a labor dispute. Judd’s additional remark
that Watts had ‘better bring [his] boxing gloves’ is
more likely to have been a figure of speech, emphasiz-
ing employees’ opposition to the break-in-place policy,
rather than a literal invitation to engage in physical
combat.
Nothing about the context of this incident suggests that
the remarks portended physical confrontation. There is,
for instance, no evidence that either Judd or Bond made
any accompanying physical gestures or movement to-
wards Watts. In fact, there is no evidence that they said
or did anything further. Moreover, although Watts tes-
tified that he subjectively perceived the remarks to be a
personal threat, he made no response to them at the
time and did not even mention the incident to Steward
Potter as they walked to the location of the next electri-
cian crew.
. . . .
Based on this analysis, we find that the statements by
Judd and Bond were ambiguous and, in the absence of
any accompanying conduct, cannot be construed as un-
protected physical threats. We therefore find that this
factor weighs in favor of the employees’ conduct re-
taining the protection of the Act.
The District of Columbia Circuit, with one judge dis-
senting, enforced the Board’s order. Kiewit Power Con-
structors Co. v. NLRB, 652 F.3d at 22. The court con-
cluded that the Board was not unreasonable in conclud-
ing that the employees’ statements were not physically
threatening. Id. at 28. The court began by stating what it
thought was obvious: no one thought that the employees
were literally challenging their superintendent to a box-
ing match. Ibid. The court then pointed out that once it
was acknowledged that the employees were speaking in
metaphor, the meaning of the words was a matter of con-
text and they were to be judged under an objective stand-
ard. Id. at 28–29 & fn. 2. Writing for the majority, Cir-
cuit Judge Griffith emphatically rejected the dissent’s
suggestion that the Board had disregarded the adminis-
trative law judge’s credibility determinations in conclud-
ing that the statements did not constitute physical threats:
The dissent seems to suggest that an employer’s sub-
jective perception of an employee’s statement is dis-
positive. See Dissenting Op. 34–35 (noting that “Watts
testified that he felt threatened”); id. at 35 (describing
“how the words were perceived”). On this basis, the
dissent characterizes the NLRB as disregarding the
ALJ’s credibility determination. See id. But the NLRB
did no such thing. It merely held that the comments
were objectively not a threat. And that is consistent
with how the NLRB has read the Act in past cases. See
Shell Oil Co., 226 N.L.R.B. 1193, 1196 (1976) (up-
holding ALJ finding that the subjective perception of a
supervisor, although taken into account, is not disposi-
tive on whether an employee loses the protection of the
Act), enforced, 561 F.2d 1196 (5th Cir.1977). It was
not arbitrary or capricious for the NLRB to determine
whether the remarks were threatening using an objec-
tive standard rather than relying solely or primarily on
the subjective perceptions of Watts.
Id. at 29 fn. 2. See also Media General Operations, Inc. v.
NLRB, 560 F.3d 181, 185 (4th Cir. 2009) (The determina-
tion of the nature of the outburst is not properly a “credibil-
ity determination” made by the ALJ[.]).
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In short, determining the nature of Aguirre’s conduct
requires us to make an assessment of the credited evi-
dence under the applicable objective standard. Regretta-
bly, we failed to make this explicit in our prior opinion.
Applying the applicable objective standard, we con-
clude, based on all the evidence, that Aguirre’s conduct
was not menacing, physically aggressive, or belligerent.
In the first place, we find that Aguirre’s statement—that
if he were fired, Plaza would regret it—was not a threat
of physical harm in the circumstances of this case. It is
beyond peradventure that Aguirre’s “regret it” statement
did not explicitly refer to physical harm in any way. Ra-
ther, that statement was ambiguous on its face. Moreo-
ver, there is no credited evidence that Aguirre had com-
mitted any violent acts, had attempted to commit any
violent acts, or had threatened to commit any violent acts
during his tenure with the Respondent. 355 NLRB at
495. Plaza admitted that Aguirre’s disciplinary record
was spotless. Aguirre did not hit, touch, or attempt to hit
or touch Plaza in any way after uttering the remarks.
And, as the prior Board panel majority explained (ibid),
“In the context of Aguirre’s recent inquiry to a State
agency regarding the employees’ entitlement to a mini-
mum wage draw against commissions, it seems clear that
Aguirre was threatening legal consequences.” Indeed,
the Respondent implicitly agrees that such an interpreta-
tion is reasonable because it stated in its opening brief to
the Ninth Circuit that Aguirre’s filing an unfair labor
practice charge with the Board constituted “[m]aking
good on his threat upon his termination.” (2010 WL
6201305 *2.) See Kiewit Power Constructors Co. v.
NLRB, 652 F.3d at 24, 28–29 (upholding Board’s finding
that employees’ statements—that “things would ‘get ug-
ly’ if they were disciplined” and that “the supervisor had
‘better bring [his] boxing gloves’”—did not constitute
threats of physical harm, but only expressed vocal re-
sistance to a policy they thought was unfair and unsafe);
NLRB v. Southwestern Bell Telephone Co., 694 F.2d 974,
975–977 (5th Cir. 1982) (steward’s repeated state-
ments—that he would see supervisor fry—found to be
ambiguous).
The judge concluded that Aguirre’s statement was
“menacing” when Aguirre stood up, pushed his chair
aside and uttered the “regret it” statement. The apparent
basis for her conclusion was that Aguirre did not imme-
diately qualify his statement by telling Plaza that he
simply meant that he would contact the proper authorities
to get his job back if Plaza fired him. This is evident
from the judge’s analysis of Aguirre’s testimony that
Plaza would get what was coming to him if Plaza did not
give Aguirre his final paycheck. There the judge rea-
soned that the paycheck statement, if uttered, would ac-
tually be “menacing” because “Aguirre did not in any
way qualify his warning” to Plaza when he uttered it.
355 NLRB at 500 & fn. 13. The judge then referenced
Aguirre’s “admit[ting] to [that] menacing language”
when the judge found that Aguirre’s actual statement—
that if he got fired, Plaza would regret it—was menacing.
355 NLRB at 501 fn. 17, 504 & fn. 24.
The judge’s reasoning is flawed. It is often the case
that an employee who utters an ambiguous statement
does not contemporaneously qualify his statement. And,
as shown, ambiguous employee statements that are not
contemporaneously qualified do not necessarily consti-
tute physical threats. Given that Aguirre had no history
of threatening or violent behavior and had informed the
Respondent’s office manager that very morning that he
had contacted a State agency regarding his belief that the
Respondent’s salespeople were entitled to a minimum
wage draw against commission, we find, as did the prior
Board panel majority (355 NLRB at 495–496), that
Aguirre “was threatening legal consequences,” rather
than making a threat of physical harm.
As for the judge’s finding that Aguirre rose from his
chair and pushed his chair aside (355 NLRB at 504 fn.
24), we conclude that this conduct, viewed objectively,
was not menacing, physically aggressive, or belligerent.
As an initial matter, we conclude that in the small office
where the Respondent chose to hold the meeting, it likely
would have been difficult for Aguirre to stand up without
pushing his chair aside.6 See Alton H. Piester, LLC, 353
NLRB 369, 369, 374 (2008) (employee’s conduct in ris-
ing and taking a step towards secretary not egregious
under Atlantic Steel, because it would have been difficult
for the employee to move without approaching the secre-
tary given the small size of the office), enfd. 591 F.3d
332, 334–335, 337 fn. 3 (4th Cir. 2010). As shown,
Aguirre had no history of violent or threatening behavior.
There is no evidence that Aguirre tried to hit Plaza, or
even made a fist, as he rose and pushed his chair aside.
And Respondent’s contemporaneous actions further un-
dermine any claim that Aguirre’s conduct was menacing,
physically aggressive, or belligerent. Although Manager
Felix testified that he and Manager MacGrew rose from
their chairs when Aguirre got out of his chair because
they thought Aguirre was about to hit Plaza, Felix admit-
ted that he and the other manager made no effort to re-

6 Both Plaza and Manager MacGrew described the room where
Aguirre’s outburst occurred as “really small.” Four people (Aguirre,
Plaza, and Managers MacGrew and Felix) were present in that office
when the outburst occurred. Felix and MacGrew rose when Aguirre
rose, and Office Manager Montenegro, whose office is located next to
Felix’s office and who was in her office for the entire meeting between
Aguirre and Plaza, testified that she heard a shuffling of chairs (plural)
just prior to the end of the meeting.
PLAZA AUTO CENTER, INC. 977
strain Aguirre. Moreover, the Respondent did not imme-
diately remove Aguirre from its property after firing him,
and Aguirre proceeded to speak with employees at the
facility, asserting that he had been fired for contacting
the State agency.
In fact, Plaza did not even mention Aguirre’s conduct
in rising from his chair and pushing it aside (or Aguirre’s
“regret it” statement), let alone characterize such conduct
as menacing, physically aggressive or belligerent, in his
contemporaneous written description of Aguirre’s out-
burst or in his subsequent position statement. Instead,
both documents merely refer to Aguirre’s use of profani-
ty. Cf. DaimlerChrysler Corp., 344 NLRB 1324, 1329
fn. 13 (2005) (employer’s hearing testimony that em-
ployee’s conduct was intimidating was supported by the
employer’s written account of the employee’s outburst).
Nor is there evidence that Respondent filed a complaint
with the police about Aguirre’s conduct. Cf. Starbucks
Coffee Co., 354 NLRB 876, 878 (2009) (in evaluating
whether employee’s misconduct cost her protection of
the Act, Board notes that manager had filed a police re-
port concerning the incident), reaffirmed and incorpo-
rated by reference, 355 NLRB 636 (2010), enfd. in rele-
vant part, 679 F.3d 70, 82 (2d Cir. 2012). And, as the
prior Board panel majority noted (355 NLRB at 496), the
judge found the Respondent discharged Aguirre for his
verbal attack, not for any physical conduct. Indeed,
when called as a witness by Respondent’s counsel, Plaza
testified he fired Aguirre” [f]or the verbal abuse he used
on me,” and that he would not have fired Aguirre other-
wise.
Having explained why we have rejected the judge’s
conclusion that Aguirre was menacing, physically ag-
gressive, or belligerent (664 F.3d at 295), we now turn to
rebalancing the Atlantic Steel factors as directed by the
Court.
B. Aguirre’s Outburst did not Cost Him
the Protection of the Act
The court’s remand specifies that we must rebalance
the Atlantic Steel factors in light of its holding that the
nature-of-the-outburst factor weighs against protection—
even absent a finding of belligerence—by virtue of
Aguirre’s obscene and denigrating language, which the
court found was also insubordinate. 664 F.3d at 289,
293–296. And upon further consideration, we concur
with the court’s finding, which in any event is the law of
the case, that the nature-of-the-outburst factor weighs
against protection. As the court (and prior Board panel)
found, Aguirre stated in a manager’s office that Plaza
was a “fucking mother fucking,” a “fucking crook,” and
an “asshole,” and told Plaza that he was “stupid,” nobody
liked him, and everyone talked about him behind his
back, after Plaza twice indicated that Aguirre could quit
if he did not like the Respondent’s policies, and that
Aguirre should not complain about working conditions.
664 F.3d at 294–295; 355 NLRB at 494–495 fns. 8 & 9.
We find that Aguirre’s obscene and denigrating remarks
must be given considerable weight because Aguirre tar-
geted Plaza personally, uttered his obscene and insulting
remarks during a face-to-face meeting with Plaza, and
used profanity repeatedly. Moreover, there is evidence
that Respondent did not tolerate employees cursing at
management (though we note that there is also evidence
that Manager Felix had used obscene language when
dealing with employees). Cf. Wal-Mart Stores, 341
NLRB 796, 807–808 (2004) (employee retained the pro-
tection of Act notwithstanding his use of profanity where
employee used the profanity to describe the employer’s
policy and its effects rather than to describe a member of
management), enfd. 137 Fed.Appx. 360 (D.C. Cir. 2005);
Tampa Tribune, 351 NLRB 1324, 1326 (2007) (intem-
perate language—referring to vice president as a “stupid
fucking moron”—weighs “only moderately” against pro-
tection in part because employee did not insult official to
his face), enf. denied 560 F.3d 181 (4th Cir. 2009);
DaimlerChrysler Corp., supra, 344 NLRB at 1329 (alt-
hough outburst was fairly brief, employee uttered profan-
ity more than once, and although profanity was common
at the plant, there is no evidence that profanity was
commonly targeted at management).
However, the fact that the nature-of-the-outburst factor
weighs against protection does not require us to find that
Aguirre lost the protection of the Act. Thus, “[i]t is pos-
sible for an employee to have an outburst weigh against
him yet still retain [the Act’s] protection because the
other three [Atlantic Steel] factors weigh heavily in his
favor.” Kiewit Power Constructors Co. v. NLRB, 652
F.3d at 27 fn. 1. Accord: Felix Industries, Inc. v. NLRB,
251 F.3d 1051, 1055 (D.C. Cir. 2001) (Board “is correct”
in observing that it may deem conduct protected as a
result of its overall balancing of the four factors even if
the nature-of-the-outburst factor weighs against protec-
tion). Indeed, the court has remanded this case for us to
rebalance the factors in light of its holding that the third
Atlantic Steel factor weighs against protection, rather
than simply outright denying enforcement of the Board’s
order.7 Our task is to “carefully balance” the factors to
determine whether in the particular circumstances pre-
sent, Aguirre’s outburst caused him to lose the protection
of the Act. Atlantic Steel Co., supra, 245 NLRB at 816.

7 In view of the foregoing, we reject the Respondent’s contention
that the law of the case doctrine compels the Board to find that Aguirre
lost the protection of the Act.
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
This in turn requires consideration of the policies under-
lying the Atlantic Steel factors.
The Atlantic Steel balancing test presupposes that “not
every impropriety committed during [otherwise protect-
ed] activity places the employee beyond the protective
shield of the [A]ct.” NLRB v. Thor Power Tool Co., 351
F.2d 584, 587 (7th Cir. 1965). This is so because “[t]he
protections [that] Section 7 affords would be meaning-
less were [the Board] not to take into account the realities
of industrial life and the fact that disputes over wages,
hours, and working conditions are among the disputes
most likely to engender ill feelings and strong responses”
(Consumers Power Co., 282 NLRB 130, 132 (1986)),
and that the language of the workplace “‘is not the lan-
guage of ‘polite society’.’” Stanford Hotel, 344 NLRB
558, 564 (2005) (citation omitted). Thus, the employee’s
right to engage in concerted activity permits “some lee-
way for impulsive behavior.” NLRB v. Thor Power Tool
Co., 351 F.2d at 587. Still, the right to engage in con-
certed activity is not absolute and must be balanced
against the employer’s need to maintain order and re-
spect in its establishment. See Thor Power Tool Co., 148
NLRB 1379, 1389 (1964), enfd. 351 F.2d 584, 587; Cat-
erpillar, Inc. 322 NLRB 674, 677 (1996).
Rebalancing the Atlantic Steel factors with the relevant
policies in mind, we conclude that Aguirre did not lose
the protection of the Act even though he used obscene
and denigrating language. Careful consideration of the
four factors reveals that the three factors weighing in
favor of protection outweigh the one factor weighing
against protection. Initially, it bears noting, as the court
recognized (664 F.3d at 293), that the subject matter of
the meeting (factor two of Atlantic Steel) during which
the outburst occurred favors Aguirre’s retaining the Act’s
protection: the subject matter concerned Aguirre’s con-
certed complaints relating to terms and conditions of
employment, including the Respondent’s compensation
policies governing its salespeople. Thus, holding that the
outburst did not cost Aguirre the protection of the Act
serves the Act’s goal of protecting the exercise of Sec-
tion 7 rights.
Moreover, we find that the first Atlantic Steel factor—
the place of the discussion—weighs heavily in favor of
protection here. As the Board’s discussion in Atlantic
Steel makes clear,8 the location where the outburst occurs
is very significant in balancing the employee’s right to
engage in Section 7 activity “against the employer’s right
to maintain order and discipline” in its establishment.
Plaza Auto Center, Inc. v. NLRB, 664 F.3d at 292. An
employer’s interest in maintaining order and discipline in

8 Atlantic Steel Co., supra, at 816.
his establishment is affected less by a private outburst in
a manager’s office away from other employees than an
outburst on the work floor witnessed by other employees.
Accordingly, we have “regularly observed a distinction
between outbursts under circumstances where there was
little if any risk that other employees heard the obsceni-
ties and those where that risk was high.” NLRB v. Star-
bucks Corp., 679 F.3d at 79. Accord Media General
Operations, Inc. v. NLRB, 560 F.3d at187 (“In balancing
the Atlantic Steel factors, the Board has in general found
that remarks made in private are less disruptive to work-
place discipline than those that occur in front of fellow
employees.”).
We conclude that affording the Act’s protection to
Aguirre here serves the Act’s goal of protecting Section
7 rights without unduly impairing the Respondent’s in-
terest in maintaining order and discipline in its estab-
lishment because the outburst was not witnessed by, and
was not likely to be witnessed by, other employees.
Thus, Aguirre’s outburst occurred in a closed-door meet-
ing in a manager’s office away from the workplace; the
Respondent chose the location of meeting in the manag-
er’s office where the outburst occurred; and no employee
overheard Aguirre’s obscene and denigrating remarks to
the owner.9
We also conclude that affording the Act’s protection to
Aguirre will further the Act’s goal of protecting Section
7 rights without unduly impairing the Respondent’s legit-
imate interest in maintaining workplace discipline and
order for the additional reason that the Respondent pro-
voked Aguirre’s outburst. Accordingly, we find that the
fourth factor weighs heavily in favor of protection here,
because the Respondent engaged in extremely provoca-
tive acts notwithstanding that the Respondent did not
curse at Aguirre. As the prior Board panel majority not-
ed (355 NLRB at 494), at least twice during the meeting
at which the outburst occurred, Plaza indicated that
Aguirre did not need to work for the Respondent if
Aguirre did not care for the Respondent’s policies. Tell-
ing an employee who is engaged in protected concerted
activity that he may quit if he does not like the employ-
er’s policies is an implied threat of discharge, because it
suggests that continuing to engage in such protected ac-
tivity is incompatible with continued employment. See
e.g., Alton H. Piester, LLC v. NLRB, 591 F.3d at 336
(The Board has often found employers’ statements to be
unlawfully coercive when they have invited employees
to quit their jobs in response to employees’ Section 7

9 The court rejected (664 F.3d at 292–293) the Respondent’s argu-
ment that Aguirre requested the meeting in order to humiliate the owner
in front of other managers, and that the place of the discussion therefore
should weigh against protection.
PLAZA AUTO CENTER, INC. 979
conduct.); McDaniel Ford, Inc., 322 NLRB 956, 962
(1997) (“[A]n 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 contin-
ued employment are not compatible, and implicitly
threaten[s] discharge of the employees involved.”)10
And a discharge is “‘the industrial equivalent of capital
punishment.’” Metz v. Transit Mix, Inc., 828 F.2d 1202,
1209 (7th Cir. 1987) (citation omitted).
In addition to twice stating that Aguirre did not need to
work for the Respondent if he did not like the Respond-
ent’s policies, Plaza also refused to deal with the sub-
stance of Aguirre’s complaints about working condi-
tions.11 Indeed, Plaza “admitted telling Aguirre at the
meeting that he should not complain about the Respond-
ent’s pay structure,”12 and thereby reiterated its hostility
to Aguirre’s exercise of his Section 7 rights. Plaza’s
repeated suggestions that Aguirre quit and the Respond-
ent’s refusal to engage on the merits invited a strong re-
sponse: Aguirre had told the Respondent’s office man-
ager that very morning that he had contacted a State
agency about the Respondent’s refusal to provide a min-
imum wage draw against commissions and had asked her
to look into the matter, perhaps by speaking to Plaza
about it. Board precedent makes clear that outbursts are
more likely to be protected when the employer expresses
hostility to the employee’s very act of complaining than
when the employer has indicated a willingness to engage
on the merits. Compare Felix Industries, Inc., 339
NLRB 195, 196–197 (2003) (finding it relevant that em-
ployer did not merely reject employee’s request for con-
tract payments, but expressed astonishment and anger
that employee was even making an issue of the matter,
and thereby expressed hostility towards employee’s
choice to exercise his Section 7 rights), adopted by 2004
WL 1498151 (D.C. Cir. 2004), and Overnite Transporta-
tion Co., 343 NLRB 1431, 1437 (2004) (it was only after
supervisor had refused to discuss the matter that steward
brought up the subject of whether supervisor had com-
mitted wartime atrocities) to DirectTV U.S. DirectTV

10 We note that the Court found “well supported” the prior Board
panel majority’s conclusion that the fourth Atlantic Steel factor favored
protection because Aguirre’s outburst “was contemporaneous with both
Plaza’s censure of Aguirre’s protected activities as ‘a lot of negative
stuff’ and Plaza’s unfair labor practice of suggesting that Aguirre could
work elsewhere if he did not like the company’s policies.” 664 F.3d at
295. We reaffirm the prior Board panel majority’s conclusion (355
NLRB at 495 fn. 9) that the judge erred in concluding that Aguirre’s
outburst occurred “[w]ithout extreme provocation from overt hostility
or antagonism from [Plaza].”
11 355 NLRB at 494, 495, 496 fn. 12.
12 355 NLRB at 495 fn. 8.
Holdings, LLC, 359 NLRB 545, 559, 562 (2013) (em-
ployee’s profane outburst weighs against protection in
part because employee had previously been made aware
that the problem he was complaining about would likely
be resolved in a few days).
Moreover, the facts in this case persuade us that Aguir-
re’s outburst would not have occurred but for the Re-
spondent’s provocation, which included threats of dis-
charge. Thus, as the court noted,13 Aguirre’s outburst
occurred contemporaneously with Plaza’s twice suggest-
ing that Aguirre could quit if he did not like the Re-
spondent’s policies, Plaza’s censure of Aguirre’s protect-
ed activities as a lot of negative stuff, and Plaza’s telling
Aguirre that he should not complain about Respondent’s
pay structure, all of which made clear that he would not
engage in the merits of Aguirre’s complaints. Further,
there is no evidence that Aguirre had ever engaged in any
even remotely similar misconduct during his tenure in
the Respondent’s employ, and, as the court concluded,14
there is no evidence that the outburst was premeditated.
Indeed, Plaza initially admitted at the hearing that he did
not think that Aguirre wanted to meet with him on Octo-
ber 28 so that Aguirre could curse at him. See Felix In-
dustries, Inc., 339 NLRB at 196–197 (absence of prior
similar misconduct coupled with timing of outburst sup-
ports conclusion that outburst would not have occurred
but for supervisor’s expression of hostility towards em-
ployee’s protected conduct).15
In sum, we find that the three factors weighing in favor
of protection outweigh the one factor against protection,
and that this conclusion strikes a proper balance between
an employee’s right to engage in Section 7 activity and
an employer’s right to maintain order and discipline in its
establishment in the particular circumstances of this case.
Holding that Aguirre retained the protection of the Act
despite his outburst protects his right to engage in Sec-
tion 7 activity without unduly impairing the Respond-
ent’s legitimate interest in maintaining order and disci-
pline in its workplace. The outburst occurred during a
discussion of key working conditions (wages) in a man-
ager’s office outside the presence of other statutory em-
ployees, and was a spontaneous reaction to the Respond-
ent’s serious, unlawful provocations by an employee who
had never previously engaged in similar misconduct.
See, e.g., Stanford Hotel, 344 NLRB at 558–559 (em-

13 664 F.3d at 295.
14 664 F.3d at 292–293.
15 Our dissenting colleague faults us for concluding that the first and
fourth Atlantic Steel factors weigh “heavily” in favor of protection here.
But the court’s remand requires us to rebalance the Atlantic Steel fac-
tors which the dissent concedes are not to be evaluated on a purely
numerical basis.
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployee did not lose Act’s protection by calling general
manager “a liar” and “a bitch,” and angrily pointing a
finger at him and then repeating that he was a “fucking
son of a bitch;” outburst occurred in context of employ-
ee’s asserting a fundamental right, was a direct and tem-
porally immediate reaction to employer’s threats of dis-
charge, and occurred in a relatively secluded room away
from the employee’s normal work area); Felix Industries,
Inc., supra, 339 NLRB at 195–197 (employee did not
lose Act’s protection by insubordinately referring to su-
pervisor as a “fucking kid” three times in a telephone call
in which employee asserted his contract rights where
surrounding circumstances make clear that outburst
would not have occurred but for employer’s serious
provocation, including a threat of termination for engag-
ing in protected activity); Caterpillar, Inc., 322 NLRB at
676–677 (employee, who was a union representative, did
not lose Act’s protection by calling supervisor a “mother-
fucking liar,” gesturing at supervisor with his finger and
saying, “You motherfucker. I’ll deal with you on the
outside,” where outburst was a spontaneous and impul-
sive reaction to supervisor’s falsely denying during a
grievance meeting that he had threatened to discharge the
employee, and where employee had no history of vio-
lence).16
The cases cited by the Respondent in its position
statement following the court’s remand do not compel a
different result. For example, in Carleton College v.
NLRB, 230 F.3d 1075, 1077, 1081 (8th Cir. 2000), the
court found that the employee, a college professor, was
unfit for further service because he was unwilling to
commit to acting in a professional manner. Moreover,
the court found there that the employee’s behavior was
not unlawfully provoked and that the place of the discus-
sion—a private meeting with a dean in the rarefied air of
a university setting—did not weigh in favor of protec-
tion. In Media General Operations, Inc. v. NLRB, supra,
560 F.3d 181, the court found that an employee’s out-
burst cost the employee the Act’s protection, emphasiz-
ing that the outburst could not be found to be provoked
where the employer had not committed any unfair labor
practices (the employee had not even read the employer’s
lawful newsletter concerning collective-bargaining nego-
tiations which the General Counsel claimed had prompt-
ed the outburst) and the outburst was not impulsive. Id.

16 Contrary to our dissenting colleague’s suggestion, we by no
means hold that the Act mandates tolerance of profane outbursts when-
ever they are somehow connected to protected concerted activity. For
example, this would have been a much different case had Aguirre’s
outburst occurred on the work floor in the presence of statutory em-
ployees and had it not occurred contemporaneously with and been
provoked by Respondent’s serious unfair labor practices.
at 187–189. In DaimlerChrysler Corp., supra, 344
NLRB 1324, three of the Atlantic Steel factors did not
weigh strongly in favor of protection as they do here.
Thus, a Board majority found there that the employee’s
profanity, involving more than a single spontaneous out-
burst, cost him the protection of the Act because the out-
burst occurred in front of other employees, thereby heav-
ily implicating the employer’s interest in maintaining
discipline, and because the outburst was not provoked by
employer unfair labor practices. Id. at 1329–1330. Simi-
larly, in Trus Joist MacMillan, 341 NLRB 369 (2004), a
Board majority found that an employee’s outburst cost
him the protection of the Act where only one factor fa-
vored protection. The Board majority emphasized that
the employer’s unlawful acts occurred 3 days prior to the
employee’s outburst and that the employee had planned
to embarrass the assistant plant manager in front of oth-
ers, thereby undermining his future effectiveness. Id. at
370–372. Here, conversely, three factors strongly weigh
in favor of retaining the Act’s protection, and Aguirre’s
outburst was a spontaneous reaction to the Respondent’s
highly provocative and unlawful statements.
C. Contrary to Our Dissenting Colleague, We have
not Failed to Apply the Law of the Case
Our dissenting colleague claims that we have failed to
abide by the law of the case. In his view, the judge’s
finding that Aguirre’s conduct was menacing, physically
aggressive, or belligerent was a pure credibility finding,
which the Board’s decision in Standard Dry Wall Prod-
ucts precludes us from reversing unless a clear prepon-
derance of the evidence convinces us that it is incorrect.
In support of his contention, our colleague relies on the
court’s statement (664 F.3d at 296) that “the Board
should give full effect to the ALJ’s factual and credibility
findings, including the finding that Aguirre’s behavior
was menacing or at least physically aggressive in that
small room, unless ‘the clear preponderance of all the
relevant evidence convinces’ the Board that they are in-
correct. Standard Dry Wall Products, 91 N.L.R.B. 544,
545 (1950), enfd. by 188 F.2d 362 (3d Cir. 1951).”
(Emphasis in original.)
We disagree with our colleague. Standard Dry Wall
Products and settled Ninth Circuit precedent make clear
that while the “clear preponderance of the evidence”
standard governs Board review of an administrative law
judge’s credibility determinations, that standard does not
apply to a judge’s factual findings or the judge’s deriva-
tive inferences or legal conclusions. Instead, Standard
Dry Wall Products holds that the Board is to “base [its]
findings as to the facts upon a de novo review of the en-
tire record[.]” Standard Dry Wall Products, 91 NLRB at
545. And the Ninth Circuit has long recognized that the
PLAZA AUTO CENTER, INC. 981
Board is free to draw different derivative inferences and
conclusions from the evidence than did the administra-
tive law judge. See NLRB v. Tischler, 615 F.2d 509, 511
(9th Cir. 1980); Penasquitos Village, Inc. v. NLRB, 565
F.2d 1074, 1078–1079 (9th Cir. 1977) (noting that defer-
ence is owed to the Board’s derivative inferences and
ultimate conclusions from the evidence, where the Board
does not disturb judge’s demeanor-based credibility de-
terminations). Yet, under the dissent’s strictly literal
interpretation of the court’s statement that “the Board
should give full effect to the ALJ’s factual and credibil-
ity findings . . . unless ‘the clear preponderance of all the
relevant evidence convinces’ the Board that they are in-
correct.’” (664 F.3d at 296) (emphasis added and deleted
in part and citation omitted), the Board would be obli-
gated to adopt the judge’s factual findings (in addition to
the judge’s credibility determinations) unless a clear pre-
ponderance of the evidence convinces us that they are
incorrect.
Moreover, contrary to the dissent’s claim, that single
sentence cannot be read literally and in isolation from the
rest of the court’s decision. In focusing solely on that
single sentence, our dissenting colleague ignores that
elsewhere in its opinion, the court charged the Board
with providing a reasoned explanation for rejecting the
judge’s belligerence finding, which we have now done.17
That “reasoned explanation” formulation used by the
court to describe the Board’s task on remand fully com-
ports with applicable law and with rest of the court’s
opinion because it accounts for the possibility that the
Board could accept the administrative law judge’s credi-
bility determinations yet still reject the judge’s ultimate
belligerence finding.
Indeed, the court’s statement—that the judge’s bellig-
erence finding was “essentially a credibility finding” (Id.
at 295)—is properly understood as reflecting the fact
that, as footnote 24 of the judge’s decision makes clear,
the judge would not have found that Aguirre engaged in
menacing, physically aggressive, or belligerent conduct
before his discharge if the judge had not made the three
credibility determinations set forth above: namely (1)
that Aguirre’s outburst occurred before, rather than after,
the Respondent fired him; (2) that Aguirre told Plaza that
if he were fired, Plaza would regret it; and (3) that Plaza

17 See Plaza Auto Center, Inc. v. NLRB, 664 F.3d at 295 (Accord-
ingly, we remand this case to the Board to re-balance the Atlantic Steel
factors as discussed in this opinion. In doing so, the Board should either
(1) reject, with a reasoned explanation, the administrative law judge’s
credibility and factual findings regarding the October 28 meeting, or (2)
adopt those findings in their entirety, including the finding regarding
belligerence.).
rose from his chair and pushed it aside in the small room
where the outburst occurred. 355 NLRB at 504 & fn. 24.
We readily agree that Standard Dry Wall Products
would have precluded us from reversing those three cred-
ibility determinations unless a clear preponderance of the
evidence had convinced us that they were incorrect. But
those credibility determinations, which we have accept-
ed, do not automatically require a finding that Aguirre’s
outburst was menacing, physically aggressive, or bellig-
erent any more than did the administrative law judge’s
credibility determinations in Kiewit Power automatically
require a finding that employees Judd and Bond were
physically threatening their superintendent when they
angrily said that things would get ugly and that the super-
intendent had better bring his boxing gloves. This is so
because the determination of whether credited conduct is
menacing, physically aggressive, or belligerent is not a
pure credibility determination. Rather, that determina-
tion requires an assessment of the credited conduct under
the applicable “objective standard.” And, for the reasons
set forth above, we believe that when judged in context
under the applicable objective standard, Aguirre’s out-
burst was not menacing, physically aggressive, or bellig-
erent.
In sum, we do not read the court’s opinion as preclud-
ing us from rejecting, with a reasoned explanation, the
judge’s belligerence finding, particularly when language
in the court’s opinion discussing its remand permits us to
do that very thing and when the only sentence relied on
by our colleague is interpreted by him in isolation and in
a manner contrary to well-settled law. See Lindy Pen
Co., Inc. v. Bic Pen Corp., 982 F.2d 1400, 1404–1405
(9th Cir. 1993) (based on a “thorough reading of [appel-
late court’s prior] decision as a whole” as well as preex-
isting case law, appellate court rejects claim that district
court had no choice but to order an accounting pursuant
to a remand that had instructed the district court to “order
an accounting” and to award damages and other relief as
appropriate), cert. denied 510 U.S. 815 (1993).
Accordingly, having concluded that Aguirre’s outburst
did not cost him the protection of the Act, we reaffirm
our prior finding that the Respondent violated Section
8(a)(1) by discharging Aguirre.
AMENDED REMEDY
Having found that the Respondent violated Section
8(a)(1) by discharging employee Nick Aguirre because
he engaged in protected concerted activity, we shall order
the Respondent to offer Aguirre immediate reinstatement
to his former job, or if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights and privileges previously
enjoyed. We shall also order the Respondent to make
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Aguirre whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him.
Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest at
the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). In addition,
the Respondent shall compensate Aguirre for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and file a report with the Social Security
Administration allocating the backpay award to the ap-
propriate calendar quarters. The Respondent shall also
be required to expunge from its files any and all refer-
ences 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. The Respondent shall also
post the notice in accord with J. Picini Flooring, 356
NLRB 11 (2010). Finally, we shall substitute a new no-
tice in accordance with our decision in Durham School
Services, 360 NLRB 694 (2014).
ORDER
The National Labor Relations Board orders that the
Respondent, Plaza Auto Center, Inc., Yuma, Arizona, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because they engage in
protected concerted activities.
(b) 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 sec-
tion of this Supplemental Decision.
(c) Compensate Nick Aguirre for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay
award, and submit the appropriate documentation to the
Social Security Administration so that when backpay is
paid to Aguirre, it will be allocated to the appropriate
calendar quarters.
(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge, and within 3 days thereafter, notify the employee
in writing that this has been done and that the loss of
employment will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Yuma, Arizona facility copies of the attached notice
marked “Appendix.”18 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. In addition to physical posting of paper notices,
the notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the penden-
cy of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since October 28, 2008.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 28 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
MEMBER JOHNSON, dissenting.
Today my colleagues find a clearly justified employee
discharge to be unlawful. In so finding, they reverse
critical credibility findings in contravention of Standard
Dry Wall1 and they fail to apply the law of the case set by
the United States Court of Appeals for the Ninth Circuit
in its opinion remanding this matter to us.2 This alone
would merit a vigorous dissent. Even if we were consid-

18 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 91 NLRB 544, 545 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
2 Plaza Auto Center, Inc. v. NLRB, 664 F.3d 286, 294 (9th Cir.
2011).
PLAZA AUTO CENTER, INC. 983
ering the discharge issue de novo, however, my col-
leagues’ 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 confronta-
tion involves protected activity. Indeed, the abnegation
of the Respondent’s right to discharge Aguirre in the
circumstances of this case runs counter to the overarch-
ing policies of promoting industrial peace and labor rela-
tions stability under our Act and impedes effective en-
forcement of other employment laws. I would therefore
affirm the judge’s finding that employee Aguirre’s con-
duct at the October 28, 2008 meeting with his managers
lost the Act’s protection.
I. BACKGROUND
In the first few weeks of employment with the Re-
spondent, car salesman Nick Aguirre frequently spoke
with coworkers and supervisors about working condi-
tions and compensation. Aguirre was convinced (and
was ultimately justified) that his commission and pay-
ment structure did not comport with state law require-
ments. On October 28, 2008, he asked Office Manager
Barbara Montenegro why salespeople on commission did
not receive a minimum wage. Later that same day, Man-
ager Juan Felix informed the dealership’s owner, Tony
Plaza, that Aguirre always complained about everything
and inquired about the Respondent’s vehicle costs be-
cause he did not trust the Respondent’s calculation of his
sales commissions. Felix then called Aguirre into Felix’s
office to meet with Felix, Manager Gustavo MacGrew,
and Plaza. At the beginning of this meeting, Plaza had
no intention of firing Aguirre. Plaza told Aguirre that he
was “talking a lot of negative stuff” that would decrease
the morale of the sales force and he was asking too many
questions. Aguirre responded that he had questions
about vehicle costs, commissions, and minimum wage.
He also asked repeatedly whether Plaza was firing him,
to which Plaza responded in the negative. Plaza told
Aguirre that he had to follow the company’s policies and
procedures, that automobile salespeople normally do not
know the dealer’s vehicle costs, and that he should not be
complaining about pay. Plaza twice told Aguirre that if
he did not trust the company, he need not work there.
Aguirre became angry. In a raised voice, he berated
Plaza and cursed him multiple times, calling him a “fuck-
ing mother fucking [sic],” 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, pushed
his chair aside, and told Plaza that he would “regret it” if
he fired Aguirre. After this outburst, Plaza fired him.
II. THE COURT’S REMAND SUPPLIES
THE LAW OF THE CASE
The issues are narrowly drawn at this stage of litiga-
tion, more narrowly than my colleagues suppose them to
be. It is undisputed that Aguirre was engaged in protect-
ed concerted activity when voicing his complaints, that
the analysis of whether he lost the Act’s protection by
misconduct at the October 28 meeting is governed by the
Board’s four-factor test in Atlantic Steel Co., 245 NLRB
814 (1979), and that evidence relevant to three of those
factors—place of discussion, subject matter of discus-
sion, and provocation by unfair labor practices—weighs
in favor of finding that Aguirre retained the Act’s protec-
tion. What remains in dispute is whether the nature of
Aguirre’s outburst weighed against protection to such
degree making his discharge lawful. It is to this point
that the Ninth Circuit’s opinion and remand instructions
are controlling.
In addressing the nature-of-outburst factor in the
Board’s initial decision, a panel majority reversed the
judge’s express findings that Aguirre’s behavior in curs-
ing and derogating Plaza was “belligerent,” “menacing,”
or “at least physically aggressive if not menacing.” Alt-
hough summarily rejecting the General Counsel’s excep-
tions to the judge’s credibility resolutions,3 the majority
nevertheless rejected the judge’s descriptive terms as
“unexplained and unsupported characterizations.”4 Then,
stating that “Aguirre’s outburst, while vehement and pro-
fane, was brief and unaccompanied by insubordination,
physical contact, threatening gestures, or threat of physi-
cal harm,” the majority concluded the nature of his out-
burst did not exceed permissible bounds and that this
Atlantic Steel factor, as well as the other three, weighed
in favor of finding Aguirre’s conduct protected.5
On review, the Ninth Circuit expressly and specifically
disagreed with the foregoing analysis. First, the court
rejected the Board’s view that Aguirre’s personal deni-
gration of Plaza with obscene and insulting language

3 Plaza Auto Center, Inc., 355 NLRB 493, 493 fn. 1 (2010).
4 Id. at 495 fn. 7.
5 Id. at 496.
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
weighed in favor of protection, holding instead that the
nature of this outburst counts against Aguirre’s retaining
protection.6 Next, the court considered the Board’s al-
ternative argument that Aguirre retained the Act’s protec-
tion under the Atlantic Steel test even if the nature-of-
outburst factor weighed against protection.7 In this re-
spect, the court found the Board’s reasoning was “inter-
nally inconsistent.” 664 F.3d at 295. It rejected the
Board’s distinction between the judge’s factual “find-
ings” and her “characterizations” of the evidence, con-
cluding that the Board actually had disregarded her fac-
tual findings. In particular, the court determined that the
judge’s findings that Aguirre’s conduct was “belliger-
ent,” “menacing,” or “at least physically aggressive, if
not menacing” were “essentially a credibility finding: the
only evidence regarding the nature of the outburst was
the competing testimony of Aguirre and [the Respond-
ent’s] witnesses. The administrative law judge expressly
determined that Aguirre’s testimony was incongruous
and ‘not as believable’ as the [Respondent’s] witnesses’
testimony, and she did not credit Aguirre’s account of the
October 28 meeting where it conflicted with the accounts
of the three [Respondent] supervisors. Thus, it was pre-
cisely because the administrative law judge gave more
credence to the testimony of the [Respondent’s] witness-
es that she found the outburst was physically aggressive
and menacing.” Id. Also relying on the judge’s credibil-
ity-based findings as to what transpired at this meeting,
the court noted that Aguirre had directed obscene insults
at Plaza during an exchange that was not brief, and, in
the court’s own view “was, in fact, insubordination.”8
Uncertain whether the Board’s inconsistent logic had
influenced the Board’s alternative holding that Aguirre
retained statutory protection even if the nature of his out-
burst weighed against retention, the court concluded with
the following specific remand instructions:
For the foregoing reasons, we remand to the Board for
proper balancing of the Atlantic Steel factors in light of
our conclusion that the Board erred in its initial assess-
ment that the nature of Aguirre’s outburst weighs in fa-
vor of protection. As we have explained, under the
Board’s own precedents, obscene, degrading, and in-
subordinate comments may weigh in favor of lost pro-
tection even absent a threat of physical harm. In addi-
tion, the Board should give full effect to the ALJ’s fac-
tual and credibility findings, including the finding that

6 Plaza Auto Center, Inc. v. NLRB, 664 F.3d at 294 (9th Cir. 2011).
7 355 NLRB at 496 fn. 12.
8 Id. at 293. The court thereby disagreed with the Board’s statement
that Aguirre’s outburst was “unaccompanied by insubordination.” 355
NLRB at 496.
Aguirre’s behavior was menacing or at least physically
aggressive in that small room, unless “the clear pre-
ponderance of all the relevant evidence convinces” the
Board that they are incorrect. Standard Dry Wall
Prods., 91 N.L.R.B. 544, 545 (1950), enforced by 188
F.2d 362 (3d Cir.1951).9
III. THE MAJORITY FAILS TO APPLY THE LAW OF THE CASE
Having accepted the court’s remand, we must observe
its opinion as the law of the case, especially in regard to
our error in assuming the nature-of-outburst factor favors
protection and our failure to give full effect to the judge’s
factual findings. The majority does not do so. The court
has made clear its view that the (1) the administrative
law judge’s factual finding that Aguirre engaged in phys-
ically aggressive, menacing, or belligerent behavior is a
credibility finding, not a separable characterization of
credited evidence, and (2) that finding can be rejected
only on the basis of the Standard Dry Wall clear prepon-
derance-of-the-evidence test. Yet my colleagues make
no attempt whatsoever to rationalize their reversal of the
judge on this basis. They do not and cannot refer to rec-
ord evidence that preponderates in favor of finding
Aguirre’s conduct was somehow more benign than the
judge found it to be. Instead, they claim not to be revers-
ing the judge at all, artificially separating her actual cred-
ibility findings from an “objective” assessment of the
nature of the conduct so found. This is precisely the
false dichotomy between the judge’s “factual findings”
and “characterizations” of the evidence made in the
Board’s original decision that was expressly rejected by
the court. However, the majority goes further afield this
time around in its “objective” attempts to refute the find-
ing that Aguirre was belligerent.10 In sum, the majority
here has failed to apply the law of the case on a critical
point by failing to give full effect to the judge’s credibil-
ity-based findings that cannot be reversed under Stand-
ard Dry Wall.
Having failed to affirm the judge’s complete credibil-
ity findings, my colleagues never actually address the
alternative issue presented by the court in its remand
instructions. They consider only whether Aguirre’s “ob-

9 Id. at 296 (italics for emphasis and in original).
10 If relevant to the credibility determination that the court directed
us to make, I would speak at some length about my colleagues’ dubious
determination that no reasonable person would view as belligerent the
conduct of an angry man who, in the course of loudly spewing invec-
tive at his employer, rises from his chair and states that if he is fired the
employer would regret it. I find imaginative, but unpersuasive, the
speculation that Aguirre was not “objectively” belligerent because he
had no history of violence, he did not hit anybody, he had to push his
chair back in order to stand in a small room, no manager sought to
restrain him, and everyone present during the incident must have un-
derstood that his “regret” statement referred only to legal action.
PLAZA AUTO CENTER, INC. 985
scene and denigrating” conduct weighs against retention
of the Act’s protection under the third Atlantic Steel fac-
tor.11 Concluding that it did, they nevertheless find that
the evidence for the three other factors weighs in favor of
continued protection. Indeed, they rebalance the original
Board majority’s weighting of those factors by stating
that the place-of-discussion and provocation factors now
weigh “heavily” in favor of protection. Consequently,
they conclude that Aguirre’s outburst did not cost him
the Act’s protection and that the Respondent violated
Section 8(a)(1) of the Act by discharging him.
Absent grounds for reversing the judge’s credibility
findings, the rebalancing analysis that the majority
should have made, as required by the court, was whether
Aguirre lost the Act’s protection under Atlantic Steel
because the nature of his outburst was obscene and bel-
ligerent and insubordinate and not brief. Contrary to my
colleagues, the court’s opinion and remand instructions
to rebalance the Atlantic Steel factors do not grant lati-
tude to now somehow discover and assign additional
weight to factors one and four than was originally as-
signed by the Board in findings affirmed by the court.
My colleagues fail to reconcile their embellishment of
the initial Board majority’s conclusions as to the weight
assigned Atlantic Steel factor one with precedent that
does not find this factor “heavily” favors protection in a
similar private office setting. See Tampa Tribune, 351
NLRB 1324, 1335 (2007), enf. denied on other grounds
560 F.3d 181 (2009). Further, the majority’s approach in
now reweighing “heavily” both factors one and four is
essentially anachronistic, implicitly assuming that the
same events frozen in the past and by the law of the case
can now illogically grow more significant and persuasive
through reimagination.
To repeat, the court directed us to engage in “a proper
balancing” in light of its conclusion “that the Board erred
in its initial assessment that the nature of Aguirre’s out-
burst weighs in favor of protection.”12 It did not permit
our “heavily” reweighting of other factors to then offset
this error.
Engaging in the more limited rebalancing directed by
the court, I reach the same conclusion that the adminis-
trative law judge did based on the same factual findings
that should now apply from the initial phase of this pro-
ceeding. The nature of Aguirre’s outburst was so egre-
gious as to outweigh the other Atlantic Steel factors and
cause him to forfeit the Act’s protection. The final out-
come of the Atlantic Steel balancing test is not “deter-

11 The majority acknowledges the court’s finding that Aguirre’s
conduct was “insubordinate,” but makes no further mention of this in
the analysis.
12 Plaza Auto Center, Inc., 664 F.3d at 296.
mined simply by counting the number of factors favoring
and disfavoring protection.” Tampa Tribune, supra at
1327 fn. 19. The Board has found that the nature-of-the-
outburst factor alone may carry enough weight to cause
forfeiture of the Act’s protection. Trus Joist MacMillan,
341 NLRB 369, 371–372 (2004). We should assign it
determinative weight in the extreme circumstances of
this case.
IV. EVEN UNDER THE MAJORITY’S FACTS AGUIRRE’S
CONDUCT LOST THE ACT’S PROTECTION
Although not germane to the proper analysis of the is-
sues remanded, I feel obliged to dissent further from my
colleagues’ conclusion that Aguirre’s conduct remained
protected even under the facts as they find them. They
accept, as they must, the court’s finding that the nature of
Aguirre’s outburst weighed against statutory protection.
Further, they purport to give this factor “considerable
weight” because the outburst was an obscene and deni-
grating, face-to-face, ad hominem attack against a senior
manager and business owner in a workplace where such
conduct had previously resulted in an employee’s firing
by the owner. Nevertheless, they find that the three other
Atlantic Steel factors favoring retention of protection
weighed more in the balance, resulting in the conclusion
that Aguirre’s discharge was unlawful.
Notwithstanding the descriptive terms used, it seems
that my colleagues pay no more than lip service to the
concept that an employee engaged in protected concerted
activity may be disciplined for verbal misconduct other
than physical threats. This is a troubling continuation of
the prior Board’s implicit mindset, notwithstanding the
Ninth Circuit’s admonition that our own precedents
clearly recognize “that an employee’s offensive and per-
sonally denigrating remarks alone can result in loss of
protection.” See, e.g., Indian Hills Care Center, 321
NLRB 144, 151 (1996) (Among the specific types of
conduct that could exceed the protection of the Act are
vulgar, profane, and obscene language directed at a su-
pervisor or employer, even though uttered in the course
of protected concerted activity.).”13
It is well established that “although employees are
permitted some leeway for impulsive behavior when
engaging in concerted activity, this leeway is balanced
against an employer’s right to maintain order and re-
spect.”14 The standard is “some leeway,” not substantial
leeway, not maximum leeway, and certainly not unre-
strained freedom. In excusing Aguirre’s conduct because

13 Id. at 293–294.
14 Piper Realty Co., 313 NLRB 1289, 1290, fn. 3 (1994), citing
NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965), enfg.
148 NLRB 1379 (1964).
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
it occurred in a private management office, involved mat-
ters of employment, and was to some extent provoked by
unlawful suggestions that he look elsewhere for work
(suggestions coupled with repeated denials that he was
being fired), I find that my colleagues go well beyond the
reasonable amount of leeway required for the protection
of Section 7 activity.
First, the majority’s analysis implies that, as an admin-
istrative law judge once misstated, “the use of vulgarities
and obscenities is a reality of industrial life.”15 The
Board is out of touch here. The reality of the modern
workplace is that employees do not typically curse each
other and their superiors like characters in a Scorsese
film.16 It is entirely reasonable, and to a great extent
legally necessary, for many employers to insist that em-
ployees engage each other with civility rather than per-
sonally directed f-bombs even on matters where opinions
differ sharply and emotions flare.17 There is no evidence
that profane outbursts like Aguirre’s were common at
Plaza Auto Center.18 Accordingly, in assessing whether
profanity in the course of Section 7 activity is so oppro-
brious as to warrant loss of protection under Atlantic
Steel, it is incumbent on the Board to give meaningful
consideration to the context of this particular workplace.
It is certainly not our mandate to define deviancy down
by federalizing a right to extreme profanity in every na-
tional workplace regardless of its existing norms or cus-
toms. For example, a small family business managed
accordingly with “small town values” should not be re-
quired by the Act to have the same workplace culture as
a dockyard or movie set.
Second, whatever the workplace context with respect
to the frequency of swearing, there is a major distinction
to be drawn between that conduct and “repeated, sus-
tained, ad hominem profanity” that amounts as well to
insubordination when directed towards management.19
This is the conduct in which Aguirre engaged. The no-
tion that such conduct is somehow less offensive because
it occurs within the confines of a private managerial of-
fice makes no sense. Aguirre’s profane and demeaning
personal attack on Plaza may have been less disruptive of

15 Coors Container Co., 238 NLRB 1312, 1320 (1978).
16 According to a report in Variety Magazine’s online edition, Scor-
sese’s “Wolf of Wall Street” set the all-time U.S. cinematic f-word
record, using it 560 times. http://variety.com/2014/film/news/wolf-of-
wall-street-breaks-f-word-record-1201022655.
17 See Laborers Local 872, 359 NLRB 1076, 1078 (2013) (distin-
guishing screaming and profane conduct in a business setting from
same conduct in dockside or construction setting).
18 See Aluminum Co. of America, 338 NLRB 20, 22 (2002) (Elliott’s
profanity far exceeded that which was common and tolerated in his
workplace.).
19 Id. at slip op. 3 fn. 10, recognizing “the legitimate distinction be-
tween expletives expressed generally and those directed at individuals.”
office productivity and discipline (although I doubt that),
but it was no less offensive to Plaza’s dignity simply
because it took place behind closed doors. To hold oth-
erwise, as my colleagues effectively do, is essentially to
subordinate the third Atlantic Steel factor (nature of out-
burst) to the first (place of discussion) in the balancing
test.
Third, in the modern, extensively regulated workplace,
it is essential for an employer to proscribe profane be-
havior that could under other employment laws be
viewed as harassing, bullying, creating a hostile work
environment, or a warning sign of workplace violence.
The Board is not an “überagency” authorized to ignore
those laws in its efforts to protect the legitimate exercise
of Section 7 rights in both unrepresented and represented
workforces.20 The holding here that a profane, sustained,
ad hominem attack on a senior manager in the work force
must be tolerated because of the connection to Section 7
activity unnecessarily impedes employers’ ability to deal
with such conduct if engaged in by one worker against
another.21
Finally, the unwarranted extension of protection to the
type and degree of misconduct shown by Aguirre dis-
serves our own statutory policy of encouraging “industri-
al peace” and labor relations stability. Even in the unrep-
resented workplace, where employees often lack the
same access to formal grievance resolution procedures as
they would have in a collective-bargaining regime, the
Board must be careful to set rational norms for self-help
attempts to exercise Section 7 rights. At a certain point,
if an employee is unable to achieve a desired goal, he or
she should turn to the proper government authority for
resolution of the problem. That course of action was
readily available to Aguirre, who could have kept his
extreme advocacy concerning commissions and mini-
mum wages in the playing field of proceedings before
the proper federal and state agencies. The risk that an
employee could instead lawfully launch into a profane,
personally abusive rant in the course of continued discus-
sion with management can only discourage the willing-

20 See Southern Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942)
(Board must refrain “from effectuat[ing] the policies of the Labor Rela-
tions Act so single-mindedly that it may wholly ignore other and equal-
ly important Congressional objectives.”)
21 See “Floor to Ceiling: How Setbacks and Challenges to the Anti-
Bullying Movement Pose Challenges to Employers Who Wish to Ban
Bullying,” 22 Temp. Pol. & Civ. Rts. L. Rev. 355, 373–376 (2013).
The author discusses the adverse impact of the Board’s high standard
for unprotected “opprobrious” misconduct on employer enforcement of
antiharassment and antibullying rules, noting in particular the impedi-
ments to enforcement created by the original Board decision in this
case as well in Fresenius USA Mfg., Inc., 358 NLRB 1261 (2012). I
note that I share in this opinion the critical views expressed by dissent-
ing former Member Hayes in Fresenius. Id. at 1273.
PLAZA AUTO CENTER, INC. 987
ness of management to have any discussion about work-
ing conditions at all.
In sum, for the reasons stated above, the result here
should be the same under a proper application of the
Ninth Circuit’s remand instructions and under the facts
as my colleagues find them. The Respondent lawfully
discharged Aguirre for opprobrious conduct that warrants
removal of the statutory protection he would otherwise
enjoy. The complaint should be dismissed. I respectful-
ly dissent from my colleagues’ failure to do so.
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
violated 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 discharge any of you for engaging in
protected concerted activities.
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 compounded
daily.
WE WILL compensate Nick Aguirre for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL submit the appropriate documenta-
tion to the Social Security Administration so that when
backpay is paid to Aguirre, it will be allocated to the ap-
propriate calendar quarters.
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.
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-022256 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W. Washington,
D.C. 20570, or by calling (202) 273–1940.