Because so few employees are represented by a union (just over 6 percent of private sector employees in the U.S.) most employers don’t have to deal with the National Labor Relations Act (NLRA) on a regular basis, if ever.   But, it’s important to remember that employees who are not represented by unions also have NLRA rights, and most employers are also subject to the law.   An employer in New York recently found that out the hard way when an employee it terminated for misconduct was reinstated by the National Labor Relations Board, a decision which was then affirmed by an appellate court.

The case is Meyer Tool, Inc. v. NLRB (2nd Cir., 2/26/2019).   The events leading to the employee termination began at a department meeting, where a manager announced the company was creating a new night-shift supervisor position.    The reason for the new position was that employees on the night shift were underperforming and took excessive breaks.   Three employees questioned the need for a night supervisor and the qualifications for the position.   One of the questioning employees, Cannon-El, also raised a question about the poor air quality in the plant, seemingly justifying the frequent breaks of night shift employees.  To address the employee complaints, the manager running the meeting summoned a company vice-president. When the vice-president arrived, he apparently got into an argument with Cannon-El.  The court stated he “began to yell at Cannon-EL while standing over him, ‘their faces inches apart.’”

The next day, Cannon-El and the other two employees who raised concerns about the new night supervisor position went to HR to complain about the vice-president’s conduct the night before. As he was giving his written statement to the HR representative, Cannon-El got into a “heated verbal exchange” with her.  The HR representative said she would give Cannon-El “to the count of three” to leave the premises, or she would call the police.    The HR representative said “one”, and Cannon-El finished by saying “two, three,” and “I have done nothing wrong.”   The police were called; Cannon El briefly remained in the hallway near the HR Department and then went to the lobby to wait for the police.  Meyer tool suspended and later terminated Cannon-El for refusing to immediately leave the premises when asked.

Cannon-El filed an unfair labor practice charge with the National Labor Relations Board arising out of his suspension and termination.   The NLRB ruled Cannon-El was terminated because he engaged in protected, concerned activity, and ordered him to be reinstated, with back pay.

On appeal to the Second Circuit, Meyer Tool argued that Cannon-El had not engaged in concerted activity because he was pursuing his individual, personal concerns when he went to HR to complain about the vice-president’s yelling at him the night before.   The court disagreed, because the other two employees who complained to HR at the same time raised similar concerns, transforming a single employee’s complaint into group activity.

Meyer Tool also contended that, even if Cannon-El engaged in concerted activity, he lost his legal protection by acting in an intimidating and abusive way to the HR representative.   Although there are circumstances in which an abusive employee forfeits protection for what is otherwise concerted activity, the court ruled that, in this case, Cannon-El was not sufficiently abusive.  His conversation with the HR representative, “while heated, did not disrupt any other employee’s work or even cause those nearby to close their office doors.”  The argument involved raised voices, but Cannon-El did not use obscenities, engage in physically intimidating conduct, make threats, or disturb customers.

This type of ruling can be very frustrating for employers.   Most agree that employers should not be expected tolerate insubordination, arguments, and verbal abuse from employees.   The takeaway from this decision, however, is not that employers have to tolerate such conduct.  Rather, it is important to understand the big picture of what happened before making the decision to terminate.   There are two important facts that probably led to the result here.  First, Cannon-El was not the only employee involved; the two other employees who participated in complaining is what made the activity “concerted.”   Second, although not a stated basis for the decision, the implication of the court’s opinion is that the company may bear some of the fault because of the bad-conduct of the vice-president yelling at Cannon-El may have contributed to the conditions that led to Cannon-El losing his temper the next day.    Even if you think the law is on your side, bad facts make for bad rulings. Terminating an employee for abusive behavior while tolerating similar behavior in management will sometimes cause a judge or jury to give the employee the benefit of the doubt.