This post was contributed by Adam L. Santucci, an Attorney in McNees Wallace & Nurick LLC’s Labor & Employment Practice Group in Harrisburg, Pennsylvania.
Yep, that’s right. The employee’s outburst is too obscene to reproduce on the Blog, but you can review the Board’s decision here. Suffice to say that the employee, who was employed for only about two months: (1) called the owner of the company a crook and a number of other colorful names; (2) the attack was personal and contained a veiled threat; and (3) was described as "physically aggressive" by a Board Administrative Law Judge. Should be enough to get you fired, right? Not with this Board.
The employee was a car salesman, and asked some general questions about restroom breaks and employee compensation during his first few days on that job. Pretty typical for a new employee. When the employee sold his first car, he questioned the commission payment he received and questioned the dealership’s draw on commissions policy. At various times, the employee was told – if you don’t like how we do things here, find yourself another job. (As much as we all would like to say that at times, you and your managers really need to avoid that statement.)
Eventually, the dealership’s owner met with the employee to talk with him about his constant complaining. During the meeting, the employee apparently lost it, as described above, and was fired for the outburst.
The employee filed a complaint with the Board, and the ALJ initially concluded that the employee was engaged in concerted activity protected by the National Labor Relations Act, but that his belligerent, physically aggressive and menacing behavior lost the protection of the Act; and therefore, the termination was upheld.
The Board disagreed and reversed the ALJ’s determination. The Board found that the Atlantic Steel factors, which are used to determine whether employee conduct lost the protection of the Act, all weighed in favor of the employee. The Board ordered the employee reinstated. The employer appealed to the 9th Circuit Court of Appeals, which determined that the Board’s decision was internally inconsistent, i.e. did not make sense, and remanded the case to the Board.
On remand, the Board affirmed its earlier decision (surprise!). The Board noted that although one of the Atlantic Steel factors did weigh against the employee, overall the factors weighed in favor of protecting the employee’s conduct. The Board concluded, again contrary to the ALJ, that the employee’s conduct was not physically aggressive or menacing. The Board concluded, contrary to the ALJ, that the veiled threat was not really a threat. Ultimately the Board held that the employee’s conduct did not lose protection of the Act.
What can we take from this case (besides a whole lot of frustration)? This Board is clearly willing to split hairs when evaluating employee misconduct and the Board’s efforts to expand the protections of the Act continue – but we knew that. To us, it appears that this Board is only going to require an express (rather than implied) threat or actual physical violence in order to find that an employee’s outburst loses protections of the Act. And that is a shame.