Some precedent at the NLRB may be changing, but some is not. Relying on a 40-year old case, the NLRB recently ruled that an Ohio manufacturer violated the NLRA when it

suspended and discharged a non-union employee for complaining about working conditions. Meyer Tool, Inc., 366 N.L.R.B. No. 32 (March 9, 2018).

The employer argued that the employee lost his NLRA protections when he became threatening and intimidating during an argument with the vice president of operations and with the human resources manager. The NLRB, however, found that management provoked and escalated the argument. The NLRB determined that the vice president was the one yelling and in the employee’s face during an argument about the new “go-to-guy” on the third shift.

The NLRB further explained that when the employee went to the human resources manager’s office the next day to complain about how he was treated, another argument occurred when the human resources manager initially refused to take his complaint. At some point during their exchange, the human resources manager told the employee to leave her office or she would call the police. The police were called. A police officer briefly interviewed both the human resources manager and the employee. The officer asked the human resources manager if the employee had been discharged. She said that he had not, but that he had been asked to leave the premises. The employee then left the premises.

In response to the employee’s conduct during these encounters, the employer suspended the employee pending an investigation and then discharged the employee for violating its rule against workplace violence and creating a threatening and intimidating environment.

Under the NLRA, an employee cannot be disciplined or discharged for engaging in protected, concerted activity, such as complaining about his and his co-worker’s working conditions. Employees, however, lose their NLRA protections if the employee’s conduct is sufficiently egregious or opprobrious. To determine whether conduct is sufficiently egregious or opprobrious to lose the NLRA’s protections, the NLRB applied a 40-year old case that established a multi-factor balancing test. Under that precedent, the factors reviewed 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.

Atlantic Steel Co., 245 N.L.R.B. 814 (1979).

The NLRB concluded that the employee’s conduct did not cross the line because management provoked and escalated the arguments. According to the NLRB, the employee may have initially been insubordinate when he did not leave the human resources manager’s office and the premises when instructed, but this insubordination did not outweigh the factors that favored the employee.

The three-member NLRB panel (two Trump-appointed Republicans and one Obama-appointed Democrat) ordered that the employer reinstate the employee with full back pay and benefits and without prejudice to his seniority or any other rights or privileges.