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Abusive Employee Retains NLRA Rights

June 12, 2003

Section 7 of the National Labor Relations Act ("NLRA") protects the rights of employees to join, form and support unions, as well as to engage in other "concerted activity for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. ยง 157. Generally, an employee may not be disciplined or discharged for engaging in these protected activities, even where his or her conduct is insubordinate or otherwise inappropriate, unless the employee's actions are so opprobrious and egregious as to render him or her "unfit for further service." See Atlantic Steel Co., 245 N.L.R.B. 814 (1979). Applying these principles, the National Labor Relations Board ("NLRB" or "Board") recently ruled that an employee's use of obscenities toward his supervisor in the course of a discussion regarding pay did not rise to the level of opprobrious conduct which resulted in a loss of the protection of Section 7, and that the discharge of the employee for engaging in this conduct was therefore unlawful. Felix Industries, Inc., 339 N.L.R.B. 32 (2003).

In Felix Industries, Salvatore Yonta, an employee, was reassigned from the day shift to the night shift. The applicable collective bargaining agreement provided for a night-shift differential payment, such that an employee working the night shift would receive nine hours of pay for eight hours of work. Yonta's first paycheck did not include this differential pay. When Yonta called his supervisor, Felix Petrillo, about the matter, Petrillo expressed that "he was not sure whether Yonta was entitled to the night differential" but that he would make sure that Yonta received the pay to which he was entitled. At this point, the conversation became hostile, as Petrillo said that he "could not believe" that Yonta was making an issue of the pay differential, and that he was "tired of carrying him." Yonta responded by cursing repeatedly at Petrillo. Later that day, the employer terminated Yonta's employment because of his conduct toward Petrillo.

In 2000, the NLRB decided that Yonta's use of expletives in his conversation with Petrillo did not cause him to forfeit his protection under the NLRA. Felix Industries, Inc., 331 N.L.R.B. 144 (2000). To reach this conclusion, the Board applied the four factors set forth in Atlantic Steel Co., 245 N.L.R.B. 814 (1979), to determine when otherwise protected activity loses the protection of the NLRA because of its opprobrious nature. Those factors 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 an employer's unfair labor practice. The Board determined that none of these factors suggested that Yonta should lose the protection of the NLRA, and therefore that his termination was unlawful.

On appeal, the U.S. Court of Appeals for the District of Columbia Circuit reversed one portion of the Board's decision. The court agreed with the Board's application of three of the four Atlantic Steel factors, but concluded that one of the factors, the nature of the outburst, suggested that Yonta's conduct should be considered sufficiently egregious to result in a loss of the protection of the NLRA. Felix Industries, Inc. v. NLRB, 251 F.3d 1051, 1055-56 (D.C. Cir. 2001). Remanding the case, the court directed the Board to determine whether the nature of the outburst carried sufficient weight to overcome the other factors suggesting that Yonta should retain his protection under the NLRA.

In its recent decision on remand, the Board adhered to its earlier finding that Yonta had not forfeited his Section 7 rights. Acknowledging the "obscene" nature of Yonta's language, the Board nevertheless found it more significant that the conversation had concerned Yonta's rights under his collective bargaining agreement and that Petrillo's comments "effectively put Yonta on notice that he could be fired for having made an 'issue' of his rights under the contract." Consequently, a two-member majority adhered to the Board's original decision that the discharge was unlawful, determining that "though Yonta's outburst weighs in favor of losing the protection of the [NLRA], it does not outweigh the factors favoring the protections accorded to him under the [NLRA]." In a dissenting opinion, however, Board Chairman Battista viewed Petrillo's responses to Yonta's inquiry as insufficient provocation, carrying at best only an implicit threat of termination, and so found that "Yonta lost the protection of the [NLRA] by engaging in outrageous conduct."

The Felix Industries decision illustrates the expansive scope of the protections to which employees are entitled under the NLRA. Even such inappropriate conduct as using profanity toward a supervisor, which in most situations would be considered a legitimate basis for termination, may fall within the broad sweep of Section 7, particularly where the employee's conduct relates to the collective bargaining process or was provoked by unfair labor practices of the employer. An employer should proceed with caution when considering termination of an employee who, for example, engages in improper conduct in the course of a grievance proceeding or in a discussion of workplace issues, and should consider whether the employee's actions in fact rise to a level which the Board would find to be opprobrious and egregious.