01/23/2012 // Los Angeles, CA, USA // Keller Grover LLP // California employment lawyer Eric Grove
Los Angeles, CA (California Employment Lawyer News) — Allegations concerning company practices made by a former Plaza Auto Center (PAC) salesman ultimately led to an outburst during a meeting and his termination, causing him to file a grievance against the company. The issue reviewed by the Court of Appeals in the ninth circuit is whether PAC violated the National Labor Relations Act by firing the salesman as a result of his outburst and inappropriate remarks in the workplace, reports California employment lawyer Eric Grover of Keller Grover LLP.
Nick Aguirre was hired as a Plaza Auto Center (PAC) salesman in August 2008 at which time he worked a three-day weekend tent sale in a local Sears’ parking lot. During the time Aguirre worked the tent sale, he asked his sales manager where the bathrooms were located, and if he was able to take a break to use the restroom and grab something to eat. The sales manager responded by saying “you’re always on break buddy…you just wait for customers all day,” while pointing to the Sears store and a gas station across the street to direct Aguirre to the nearest bathroom facilities, the lawsuit stated.
During the next tent sale in September, when Aguirre asked the sales manager for a break to eat and use the bathroom, the sales manager refused, reiterating that salespeople were “always on break.” According to the lawsuit, Aguirre was then informed that if he did not like PAC’s policies that he was free to leave at any time, reports Grover, a California employment lawyer.
Aguirre further claims that it was only at the next tent sale that he learned that salespeople were paid solely on their sales commissions, and were not paid a minimum wage draw.
Additionally, when Aguirre sold a car from the company’s “flat list,” which is a list of vehicles that carried a higher commission due to the difficulty selling these vehicles, he received a much lower check than he expected. Aguirre was paid $150—much lower than a similar vehicle on the “flat list” with a commission ranging from $1,000 to $2,000. When Aguirre confronted the sales manager about the check, the sales manager said Aguirre had “given the vehicle away almost for free,” which is why his check was so low.
The compensation issue continued during an October PAC tent sale when Aguirre began feeling that PAC was not calculating his commissions correctly, which prompted him to ask the sales manager which vehicles would produce a good commission. In response, the sales manager said Aguirre was welcome to leave if he did not trust PAC, the lawsuit stated.
Because of Aguirre’s ongoing suspicions, he asked for, and obtained information relating to PAC’S compensation system from Arizona’s wage and hour agency, and learned that salespeople are entitled to minimum wage as a draw against commissions.
After obtaining this information, Aguirre spoke with the office manager regarding the minimum wage issue. The office manager stated that the company did not pay minimum wage, and that he should work elsewhere if he wanted a minimum-wage job, court documents revealed. Aguirre then requested that the office manager look into the issue, because he had spoken with the state wage agency about a draw.
Later that same day, Aguirre was called into a meeting in the sales manager’s office. Also present at the meeting were the general manager and the owner, Tony Plaza. The meeting started with Plaza stating that Aguirre’s negative talk was affecting the sales force and that he was asking too many questions. Aguirre was informed that he had to “follow PAC’s policies and procedures, that car salespeople normally do not know the dealer’s cost of vehicles, and that he should not complain about pay.” Aguirre was also told—once again—that if he did not trust the company, he didn’t have to stay.
This led Aguirre to lose his temper and begin shouting and berating Plaza, using highly profane language. Aguirre then informed Plaza that if he fired him that he would “regret it.” Aguirre was then fired, the California employment lawyer reports.
PAC filed an appeal requesting a review of an NLRB order holding that PAC violated certain sections of the National Labor Relations Act (NLRA) by firing Aguirre for his outburst. The National Labor Relations Board (NLRB) concluded that Aguirre’s inappropriate remarks towards PAC’S owner were not sufficient to negate his protections under the Act, because his outburst did not include any physical conduct or at least a threat of bodily harm.
The appeals court ultimately weighed in on the issue of the nature of the outburst and decided to remand the issue to the NLRB for further consideration. They believed that the NLRB was in error in its assessment that the nature of the outburst tipped the scales in favor of protection. The court concluded “under the Board’s own precedents, obscene, degrading and insubordinate comments may weigh in favor of lost protection even absent a threat of physical harm.” Essentially the court believed that their initial finding was inconsistent with their own precedents, explains Los Angeles employment attorney Eric Grover.
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