June 18, 2014

angryman.jpgNLRB Says Conduct Was Protected Activity

The Background of the Case

This is how the story goes: An employee complained about pay practices at the business where he worked. The employer, owner of the business, took the employee into his office and told him that he had to follow the employer’s policies and procedures, and that he should not be complaining about his pay. The employer told the employee, “that if he did not trust the him, he need not work there.” The employee then became irate and started yelling at the employer, called him a “fucking mother fucking,” a “fucking crook,” and an “asshole,”, that he was stupid, nobody liked him, and everyone talked about him behind his back. During this tirade, the employee also pushed his chair aside and told the owner that if he fired him he’d regret it. The owner obliged & fired him. 

What Did The Employee Do Next?

Of course, the employee filed a NLRB unfair labor practices charge based on his termination being based on his exercise of a protected activity under Sec. 7 of the NLRA. On remand from the Ninth Circuit, the National Labor Relations Board in Plaza Auto Center, Inc., 360 NLRB No. 117 (2014) found that the employer violated the National Labor Relations Act by firing the employee. In reviewing the facts, the Board looked at whether the employee’s behavior was so outrageous to lose Section 7 protection. The factors it considers under precedent of Atlantic Steel Co., 245 NLRB 814 (1979) are: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by the employer’s unfair labor practices.

The NLRB Decided the Employee’s Conduct Was Not Egregious Enough

The NLRB concluded that the employee’s conduct was not so severe as to cause him to lose his statutory protections. The Board found that three of the test factors weighed in favor of the employee retaining protection of the Act because:

  • the outburst occurred in a closed-door meeting in a manager’s office away from the workplace;
  • the subject matter concerned the employee’s protected conduct; and
  • the employee’s conduct was provoked by the employer’s unfair labor practice of inviting the employee to quit if he did not like the employer’s policies.
Moral of the Story for Employers

As an employer, you better look at the background for an employee’s profane, insulting outburst before making the knee-jerk reaction of firing him or her for it. You may end up having to take the employee back, especially if the NLRB finds your prohibited conduct prompted it. That would really be a bitter pill to swallow.

Adair M. Buckner, Attorney at Law, is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. Her other areas of practice include business law, business disputes, commercial litigation, estate planning, and probate. You can reach Adair at (806)-220-0150 or This material is not intended to be legal advice. The contents are intended for general information purposes only.
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