On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
The opinion of the court was delivered by: Quist, District Judge
Argued and Submitted October 27, 2011-San Francisco, California
Before: Susan P. Graber and Sandra S. Ikuta, Circuit Judges, and Gordon J. Quist,*fn1 Senior District Judge.
Plaza Auto Center, Inc. ("PAC" or "company") seeks review of an order of the National Labor Relations Board (the "Board") holding that PAC violated section 8(a)(1) of the National Labor Relations Act (the "Act"), 29 U.S.C. § 158(a)(1), by firing employee Nick Aguirre ("Aguirre") for his outburst during a meeting with PAC management regarding PAC's compensation policies. Applying the four-factor test in Atlantic Steel Co., 245 N.L.R.B. 814 (1979), the Board concluded that in spite of his inappropriate remarks toward PAC's owner, Aguirre did not lose his statutory protections under the Act. The Board has filed a cross-application for enforcement of its order, including its finding that PAC repeatedly violated the Act by inviting Aguirre to quit in response to his protected activities.
We have jurisdiction pursuant to 29 U.S.C. § 160(e) and (f). For the reasons set forth below, we grant PAC's petition for review and remand to the Board to balance the Atlantic Steel factors in light of our discussion below. We also grant the Board's petition for enforcement of Paragraphs 1 and 2(d)-(e) of the order.
PAC sells used cars in Yuma, Arizona, and is owned by Tony Plaza ("Plaza"). PAC has two sales managers, Juan Felix ("Felix") and Gustavo MacGrew ("MacGrew"), and an officer manager, Barbara Montenegro ("Montenegro"). PAC hired Aguirre as a salesman at the end of August 2008. During Aguirre's brief employment with PAC, which ended on October 28, 2008, PAC conducted three-day weekend tent sales in a Sears parking lot. Also during that time, Felix and MacGrew held weekly meetings for the sales staff.
On his first day with PAC, Aguirre worked at a tent sale. During his shift, when Aguirre inquired about bathroom facilities, 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, "you'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 company's policies.
During PAC's next tent sale in mid-September, Aguirre spoke with other salespeople about PAC's compensation pol- icy. 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. MacGrew responded that if employees did their jobs correctly and followed all of the procedures, they would make money. Sometime thereafter, Aguirre sold a vehicle listed on the company's "flat list"-a list of vehicles 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 $1,000 to $2,000. To Aguirre's surprise, however, he received a check for only $150. His fellow employees agreed that it was unfair. Aguirre ...