So you want to fire an employee for calling you an %@#*&! in front of customers? Barack Obama says not so fast…

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A few weeks ago I wrote about the National Labor Relations Board seeking to destroy the very nature of America’s most successful business models… franchising. While on occasion the NLRB will stumble across a real issue of consequence, the frequency of that is about the same as real data supporting the man made global warming hoax. More often the agency is simply a shill for labor unions and disgruntled employees.

Speaking of the NLRB, I generally don’t like to revisit the same topic when the first piece might still be stuck in someone’s mental cache. The last thing in the world you want a reader to say is “Didn’t this guy just write about this?” In this case however I’ll make an exception and take my chances…


If you’ve ever actually owned a business or run a business you know how difficult it can be to make a success out of it. The challenges are everywhere. From navigating through the web of federal, state and local government regulations to finding and keeping customers to making sure that you can pay the bills and keep the lights on… just doing the basic things to stay in business can be difficult. Some of the things you need to do are pretty straight forward… like what company are you going to select for your electricity to where you get your supplies to figuring out what your hours of operation will be. Other things are more difficult, such as figuring out which permits you need to apply for to deciding on your marketing strategy to setting your prices appropriately so that you can make a profit… even if that’s somewhere down the road.

By far one of the most challenging parts of any business is personnel. When it comes to looking at the keys to success of a business, there are likely few aspects that are more important and difficult as personnel. These are the people who are going to be greeting the customers or manufacturing the products or providing the services that you engage in and for which customers willingly exchange their money. (Obviously there are some businesses where a high ratio of the work done by machines, but usually those too are maintained by people.) Because personnel, the people doing the work for you is so important, the effort involved in attracting, selecting, training and managing employees is often disproportionately high relative to other aspects of the business.

In some industries, like financial services or auto mechanic or computer programming, individual compensation can be high because there are relatively few people who can do those particular jobs. In others, like dishwasher, burger order taker or cashier, compensation is usually lower because there are relatively more people who are capable and willing to do those jobs. In virtually all cases however the owner or manager has to interview, select and train their people.

Once the staff is in place, that’s where the real headaches begin. Managing schedules, apportioning assignments, giving responsibilities, basic supervision and of course managing personalities – which sometimes conflict – are all parts of keeping the business running smoothly whether you’re making widgets or selling drywall. In the restaurant business all of these come into play but there’s the added element of the employees interacting extensively with customers… who themselves can be fickle, demanding, indecisive and sometimes rude. It’s in this mix of sometimes controlled chaos, sometimes stark boredom that restaurant managers must figure out how to properly engage, motivate, reward and punish their employees in the right combination that keeps customers wanting to come through the front door. In the highly competitive restaurant space, a failure to do so can easily turn today’s hottest restaurant into tomorrow’s ghost town.


And it’s into this mix that Barack Obama’s NLRB has decided it insert itself. You fire two Hooters’ waitresses for cursing at another waitress in front of customers… The NLRB says not so fast. You fire a car salesman for cussing at you, calling you an idiot in the middle of a company meeting… The NLRB says not so fast. You fire a Starbucks barista for cursing at you and telling you to do the job yourself… the NLRB says not so fast. In a string of recent decisions the NLRB has decided for employees against employers in cases that in any rational universe would be open and shut. Employees are generally employed to do particular jobs, and to the extent that they do so effectively and the business prospers, they usually keep those jobs. But it’s the businesses who are paying them and when those businesses find the employees doing things that harm that business, they are generally within their rights to fire those employees. Unless of course Barack Obama’s NLRB decides otherwise.

So, in addition to everything from Obamacare mandates to rising minimum wages, the Obama administration is now suggesting that employers must endure verbal abuse and insubordination from their employees. It makes you wonder why anyone would ever choose to risk their capital, their time and their energy to try and start a business when the government decides it gets to make more and more of the key decisions upon which your success rests. At some point it’s no longer worth the effort and would-be entrepreneurs simply give up and decide to find a job rather than trying to build something new. The reality is, entrepreneurs have been throwing in the towel for years. With this latest set of rulings from Obama’s NLRB you should expect the number of towels piling up in the middle of the ring to grow.

The product of a military family, growing up in Naples, Italy and Guantanamo Bay, Cuba, and being stationed in Germany for two years while in the Army, Vince spent half of his first quarter century seeing the US from outside of its own borders. That perspective, along with a French wife and two decades as a struggling entrepreneur have only fueled an appreciation for freedom and the fundamental greatness of the gifts our forefathers left us.

17 Responses to “So you want to fire an employee for calling you an %@#*&! in front of customers? Barack Obama says not so fast…”

  1. 1

    Nanny+G

    We have such full employment in Utah that many people with disabilities hold jobs.
    In Farmington, Utah a man who was so disabled he needs a full-time work coach by his side was hired by Papa John’s Pizza.
    An operating partner dropped by the store and saw the man working with his coach, he allegedly told the Papa John’s to fire him.
    http://consumerist.com/2014/09/29/eeoc-lawsuit-accuses-papa-johns-pizza-of-firing-worker-with-down-syndrome/
    The EEOC says it’s seeking back pay and damages for the former employee.
    http://www.eeoc.gov/eeoc/newsroom/release/9-29-14a.cfm
    Perhaps he did the job well as long as his work coach was right over his shoulder.
    But can an economy stand for long is too many workers require full-time work coaches standing by their sides all shift long?
    I think that is an untenable business model.
    Even though the ”taxpayers” are footing the bills for these work coaches instead of the pizza customers, it is a failure of a work model.
    Sort of a ”cash-4-clunkers,” failure.
    Add an extra $24,000 to the price of each car.
    And how much more to the price of each coached worker per year?

  2. 2

    Ronald J. Ward

    To be clear, the Hooters ruling was a result of Hooter’s very Code of Conduct Handbook being in violation of employee rights under the National Labor Relations Act enacted long before Obama. It’s what’s called “upholding” the law.

  3. 5

    Ditto

    the NLRB says not so fast. In a string of recent decisions the NLRB has decided for employees against employers in cases that in any rational universe would be open and shut.

    This is what happens when a far-left political ideologue stacks agencies with fellow far-left political operatives. The next Republican President needs to seriously review, investigate and clean house of our government agencies of every political operative. Which IMO means that RINOs need not apply.

  4. 6

    Ronald J. Ward

    @Ditto: Is your argument that this particular agency is stacked with far-left political ideologues or is it of the agency’s existence? Which do you propose this new Republican President do and how precisely do you suppose he can do this?

    Do you understand the legislative process of eliminating such agencies and do you understand the appointment and confirmation process? Your comment indicates that you don’t.

  5. 7

    Ditto

    The National Labor Relations Board was designed to be a neutral arbitrator between Union, Non-union Employees and employers to enforce the National Labor Relations Act. The NLRB is neither a legislative or judicial body, but only an arbitration enforcement agency. Obama stacked the National Labor Relations Board with pro Labor operatives Illegally according to the SCOTUS when he declared Congress to be in recess (when it wasn’t and without the Constitutional authority to do so.) in order to put his hand picked appointees in place without Congressional approval. Clearly you had your head up your rear and missed that.

    A new Republican President, (as the executive administrator over the NLRB,) can pass an executive order that recognizes as “nullified” all rulings and decisions made by the NLRB while it was operating illegally. A Republican President can also order a full Justice Department investigation of the NLRB as to whether it corruptly colluded with pro-union operatives in making it’s rulings.

    Your reading comprehension is very poor. I didn’t write word one about the elimination of the NLRB.

    It’s actually very simple to eliminate a government agency. A Republican controlled Congress and President can do so in the same manner these agencies are created, through legislation passed by Congress and signed by the President. In fact it will be even easier now that Harry Reid has changed the rules to his “nuclear option,” as there is no requirement for a Republican controlled Congress to reverse Harry’s rule changes. You see, what’s good for the goose is good for the gander, and lefties like you should have realized that instead of sitting in your armchairs cheering Reid on.

  6. 10

    Ronald J. Ward

    @Ditto: If you’re going to chastise me for implying you advocate “eliminating” the agency, in all fairness, I challenge you to point out where and how I cheered Reid. You know, that goose and gander thing.

    I understand the SCOTUS’s decision but also understand that as of last summer, Republicans allowed an up and down vote on all 5 nominees. While the outcome of those cases during that era can be voided, they can also be taken up by present board and would ultimately return the same decisions albeit creating a back load.

    The National Labor Relations Board was established through The National Labor Relations Act (aka Wagner Act) passed by Congress in 1935 and accordingly takes congressional action to abolish. However, it can and has been amended through the Taft-Hartley Act of 1947.@Brother Bob: and @MAKAYA:

    What specifically was violated?

    Your laziness to research the decision which is at your fingertips is obviously more of a distraction than an attempt to have an honest discussion. There were actually 9 violations found in the Hooters Code Of Conduct handbook.

    1)“NEVER discuss tips with other employees or guests.”
    2) “Insubordination to a manager or lack of respect and cooperation with fellow employees or guests.”
    3) “Disrespect to our guests including discussing tips, profanity or negative comments or actions.”
    4)” Unauthorized disclosure of “sensitive” company information, including “any information” contained in company records.”
    5) “Any other action or activity which Hooters reasonably believes represents a threat to the smooth operation, goodwill or profitability of the Company’s business.”
    6) “Any off-duty conduct which negatively affects, or would tend to negatively affect, the employee’s ability to perform his or her job, the Company’s reputation, or the smooth operation, goodwill or profitability of the Company’s business.”
    7) “Employees shall not discuss the Company’s business or legal affairs with anyone outside the Company.”
    8) “Information published on your social networking sites should comply with the company’s confidentiality and disclosure of proprietary information policies.” (We have written about the NLRB’s focus on social media policies before.)
    9) “Be respectful to the Company, other employees, customers, partners, and competitors. Refrain from posting offensive language or pictures that can be viewed by co-workers and clients. Refrain from posting negative comments about Hooters or co-workers.”

    As Matthew J. Feery explains this:

    The main reasons each of the aforementioned provisions was found to be in violation of the Act were because the ALJ found them so broadly worded and lacking in qualification or limitation that employees could interpret them to prohibit the exercise of activities protected by the Act, such as discussing or complaining about wages and working conditions. Some prohibitions, such as the prohibition on disrespect for guests or on interference with company “goodwill” and goals, were closer calls. But even there, the lack of any qualification or indication of what conduct was or was not included in the prohibition allowed the ALJ to find the provisions were overbroad and thus in violation of the Act.

    When you look more into the actual case and what really happened, it gives a much less slanted perspective than the anti-union crowd likes to concede. Jon Hyman explains:

    In Hooters of Ontario Mills , a National Labor Relations Board Administrative Law Judge found that a California franchisee of Hooters unlawfully fired a waitress for complaining about a bikini contest that she perceived as fixed. In the same decision, the ALJ also concluded that the restaurant maintained numerous illegal polices in its employee handbook.

    Alexis Hanson, a Hooter Girl in an Ontario, California, outpost of the beer-and-wings establishment, complained to management that she believed that bar’s annual bikini contest was rigged. After the contest, she was terminated for “cursing at” the winner and the store’s Marketing Director. When she protested that she hadn’t cursed at anyone, the manager changed her tune and told Hanson, “Okay. Well, then you are being terminated for your negative social media posts.”

    The ALJ concluded that Hanson’s discharge was unlawfully motivated by her protected concerted activity (i.e., her complaints to the manager about the bikini contest). The ALJ was persuaded by the fact that the employer had failed to conduct an investigation before firing Hanson, and also by its shifting reasons for her termination.

  7. 11

    MAKAYA

    RJW,

    Please have the civility not to editorialize about my motives. I made a reasonable request. You gave a reasonable answer.

    Now, wasn’t that easy?

  8. 12

    Ronald J. Ward

    @MAKAYA: To better articulate my argument in a less condescending manner, I find it to be a distraction when folks like you and/or Bob tend to render my rebuttals void of merit lest I educate you on what we’re talking about.

    If you and/or Bob are ignorant of the specifics of the discussion (as your question implies), why am I accountable to to explain them to you?

    I mean, if I were to intrude on someone’s conversation I’d hope to be knowledgeable of the conversation, make every attempt to arm myself with such knowledge, or as a last resort possibly wing it and try to pass myself off as having an iota of a clue as to why I’m challenging the argument.

  9. 13

    MAKAYA

    RJW

    I merely asked for clarification. I did not intrude on any conversation by simply asking a question. You have set yourself up as the one with the knowledge and that’s fair enough. I didn’t “research the decision” because I frankly wasn’t THAT interested. Your response, minus the ad hominum attacks, was exactly what I was asking for. Thanks. But no thanks to your continued arrogance.

    Now, wasn’t that easy?

  10. 14

    Marine72

    RJW: Thank you, thank you, thank you for your unsolicited and arrogant contribution to what was an insightful personal consideration of Vince’s post on the intrusions of the ALJ into the actions of the business community. This affected Hooter’s employee has always had the availability of legal recourse for redress of grievance (gee, if I remember right there was some mention of it in the Constitution).

    The real problem is that the ALJ’s ADMINISTRATIVE (not judicial) finding now becomes an extension of the original legislation’s intent. No small (or even large) business can long survive the overreach of our self-serving, gummint “Kleptocrats”.

    But thank you for your condescension of us “Little People”. I just do not know how I make it through the day without seeking you imitable advice on whether to use 4 squares of TP double strength or 6 squares of the also ran TPs. Whether to let it mellow if yellow or to request directions should it be brown as to send it on down. So many decisions and so little help. Keep up the ____work.

  11. 15

    Brother Bob

    author

    @RJW: Let me get this straight. The NLRB has ruled that an employee can not be fired for:
    Insubordination
    Being disrespectful to customers
    Disclosing company secrets
    etc…

    Sounds too stupid to be true, but more importantly, you support this why?

  12. 16

    Ronald J. Ward

    @Brother Bob: I’m not much a fan of the ole “let’s see if I got this straight” rhetoric as I have no control over your deductive reasoning.

    You continue to confirm my suspicion as no more than the usual kibitzing troll with more of an interest of distracting the argument rather than constructive dialog. You start out by being incapable of Googling what’s right at your fingertips and now you seem incapable of reading and comprehending the very response you requested.

    To be clear, the NRLB simply complied with the rules set in place in 1935 by the NRLA. Also exposed was the fact that Hooter’s was inconsistent in their reasons for firing the employee.

    Another issue that my response brings to light is that Vince once again exaggerates in order to sell an entirely different scenario than that of reality. While it’s true that Hooter’s originally “accused” the employee of cursing at of the store’s Marketing Director, what came out in arbitration was that after the manger conceded it wasn’t true, they decided to go with social media violations to justify the firing. Perhaps there’s parts of that you missed or you didn’t understand or you chose not to understand or maybe a preference to pound sand better suited you? I don’t know and again, I have no power over your “let me get this straight” rationale.

    but more importantly, you support this why?

    There are 2 major problems with that statement. Why or how does my support or lack of contribute to the argument? How does this play a role in what the NLRB ruled or how Congress legislated in 1935? There is no importance one way or the other. The other issue is that I haven’t advocated for or against the ruling one way or the other but rather simply responded to Vince’s nonsense with

    To be clear, the Hooters ruling was a result of Hooter’s very Code of Conduct Handbook being in violation of employee rights under the National Labor Relations Act enacted long before Obama. It’s what’s called “upholding” the law.

    To be additionally clear, it’s rather common place to see the resident trolls enter in distracting rodeo clown fashion to help save face when such utter gibberish is exposed.

    It really is indeed that simple.

  13. 17

    Brother Bob

    author

    #RJW: The ruling against Hooters just came in May of 2014, not 1935, that came from an agency stacked with the president’s union stooges. I actually agree with you on the specific case you’re citing, but that doesn’t warrant the NLRB nosing in to the extent that it did.
    Or maybe you could share a story of how you’ve had no problems at all running your own business or managing staff where employees could be disrespectful toward you, your customers, give away sensitive info, etc? The left in this country has some strange disconnect with why we have a sluggish economy while ignoring its repeated efforts to remove employers’ incentives to hire.

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