An employee who is engaging in protected, concerted activity and is responding to an employer's unfair labor practice may nevertheless lose the NLRA's protection when the employee engages in indefensible or abusive conduct towards supervisors. The typical scenario occurs during conversations or meeting when an employee becomes angry or threatens management while discussing his or her concerns. This was the scenario in Plaza Auto Center where the Board decided in a 2-1 decision that an employee did not lose protection in spite of his language and actions [an enhanced version of this opinion is available to lexis.com subscribers]. The decision was the second time the Board reviewed the case; it was on remand from the 9th Circuit. It had earlier found the employee could not be fired for his conduct. The event which triggered the termination was a meeting between the employee and his manager and the owner of the company. The employee had earlier complained about commissions, the cost of the vehicles, and the failure to be paid a draw. At the meeting the employee was told if he was unhappy and did not trust the company, he did not have to continue to work. The meeting took place in a small office. The employee called the owner a "f----ng mother f---; a f------g crook; an ass----; and added that he was stupid; nobody liked him; everyone talked behind his back. As he spoke, the employee stood up; pushed his chair aside; and told the owner that if he fired him, he would regret it. He was subsequently fired. The 9th Circuit remanded the case to the Board in light of an inconsistency it noted in the Board's analysis [enhanced version]. The court stated that the factors used to determine whether an employee's conduct results in a loss of protection is found in the Board's Atlantic Steel Co. decision. The four factors are: the place of the discussion; the subject matter of the discussion; the nature of the employee's outburst; and whether the outburst was provoked in any way by the employer's unfair labor practice charge. The court stated that implicit in the Board's analysis that the outburst was not sufficient to cause a loss of protection was the requirement that the action be accompanied by physical conduct or at least a threat that is physical in nature. The court reached this conclusion in light of the fact that the Board found seemingly immaterial the administrative law judge's finding the employee personally denigrated the owner with obscene and insulting language. If so, the rule is at odds with its own precedent. The court remanded the case with directions that the Board either reject, with reasoned explanation the judge's credibility and factual findings concerning the meeting or adopt the findings. On remand, the panel majority decided that in applying an objective standard, the conduct was not menacing, physically aggressive, or belligerent. The statement that the employer would regret firing him was ambiguous and the act of getting up was not menacing in light of the small office and the fact the chair would have to be moved to get up. Where as here, the outburst was away from the workforce and no employee overheard it or witnessed it, the employer interest in maintaining discipline is not impaired by extending the Act's protection to the employee. The dissenting member stated that the holding that a profane, sustained, ad hominem attack on a senior manager in the work force because of its connection to Section 7 activity unnecessarily impedes an employer's ability to deal with such conduct if engaged in by one worker against another. Under the banner of an "objective" standard, the panel majority broke the employee's conduct into parts and examined each part to determine, in effect, whether it was "bad" or not. By isolating the employee's actions, the panel majority artificially lessens the impact of the event. An employee cursing at the owner; suddenly standing up and telling the owner he would regret terminating him would certainly make the reasonable employer be concerned about the employee's intentions. It appears that the panel majority has added a requirement of some overt physical act to accompany the language. The panel majority did not factor in the nature of the employer's conduct which might have provoked the employee. The fact the employer mentioned to the employee that his complaints were " a lot of negative stuff" hardly seems to be fighting words in the absence of accompanying conduct to provoke the employee. One would expect a second trip to the 9th Circuit. In the meantime, employers will have be aware that similar conduct, unaccompanied by physical threats or actions may still be found to be protected under the Board majority's rationale.
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