Media Center

News Publications Articles Videos
Employee’s Misconduct Protected by the NLRA – What?
January 23, 2019
Parsons Behle & Latimer Legal Briefings

Currently on appeal before the Second Circuit is a March 2018 decision issued by the National Labor Relations Board (NLRB) that confirmed that an employee’s conduct must be significantly egregious before losing concerted activity protection afforded by the National Labor Relations Act (NLRA). Below is an outline of the case. 

Meyer Tool provides manufacturing and other services for aerospace and power generation industries. Cannon-El worked the night shift at Meyer Tool’s manufacturing facility. Meyer Tool began to experience production-related issues in Cannon-El’s department. At a night-shift employee meeting, management disclosed that a new manager position was being created, and that the position would be filled by a current employee who would be responsible for overseeing the area in which Cannon-El worked. Cannon-El and other night-shift employees believed the new position was unnecessary and the person selected, unqualified. A heated argument ensued during which Cannon-El accused management of lying and disregarding employees, to which a manager responded by yelling at Cannon-El – their faces mere inches apart.

The following day, prior to the beginning of his shift, Cannon-El filed a complaint with an HR employee that resulted in a heated argument regarding the basis for the complaint. Cannon-El claimed that the prior evening, due to racial motivation, he had been assaulted and threatened. The HR employee responded with several dismissive statements and accused Cannon-El of being aggressive. He instructed Cannon-El to leave or police would be called. Cannon-El refused to leave, police arrived and ordered Cannon-El to leave the premises.

The following day, Cannon-El was instructed not to return to work until notified, as Meyer Tool was investigating the incidents. Meyer Tool commissioned an investigative committee that recommended terminating Cannon-El for his threatening behavior and refusal to leave the premises as well as training for Meyer Tool’s management and HR employee. Meyer Tool’s owners adopted the committee’s recommendations, and Cannon-El was terminated.

Cannon-El filed an unfair labor practice charge against Meyer Tool which resulted in a complaint alleging Meyer Tool violated Sections 8(a)(1) of the NLRA when it called the police and suspended and discharged Cannon-El while he was engaged in concerted activity.

The NLRB applied the Atlantic Steel factors – a four-factor test, to analyze the complaint. First, the NLRB determined that Cannon-El, along with the other employees involved, were engaged in protected, concerted activity when they complained about the company’s creation of the new position and the qualifications of the individual selected for that position. These issues were found to be related to wages, hours and other terms and conditions of employment, which are protected under the NLRA.

Second, the NLRB next analyzed whether Cannon-El lost the protection of the NLRA due to his conduct after he turned in his complaint and refused to leave the premises. The NLRB reasoned that the heated exchange occurred in Meyer Tool’s HR office which is where complaints are expected to be filed by employees. The NLRB discounted the HR employee’s belief that Cannon-El was being aggressive, as other HR employees present in the office were able to continue working with their doors open. The NLRB therefore determined that the location of the discussion was reasonable. The NLRB also leaned in favor of NLRA protection given that the subject matter of the discussion in the HR office concerned protected, concerted activity.

As to the third factor – whether the nature of the employee’s outburst favors protection – the NLRB recognized “that a line ‘is drawn between cases where employees engaged in concerted activities that exceeded the bounds of lawful conduct in a moment of animal exuberance or in a manner not motivated by improper motives and those flagrant cases in which the misconduct is so violent or of such a character as to render the employee unfit for further service.’” The NLRB noted that Cannon-El had neither used profanity nor engaged in conduct that was physically threatening.  It was also determined that Cannon-El would not have acted the way he did but for the HR employee’s provocation in being dismissive of his complaint. Cannon-El’s conduct may have been disrespectful, rude, and defiant, but he was not acting in a violent manner. This factor weighed in favor of protection.

The fourth factor addressed was whether Cannon-El’s conduct was provoked by the company’s unfair labor practice and whether that conduct evidenced an intent to interfere with rights protected by the NLRA. The NLRB found that management initially harassed Cannon-El during the night-shift meeting when he raised protected, concerted issues which ultimately led to the subsequent events. It was therefore determined that management’s conduct, which constituted an unfair labor practice, provoked Cannon-El’s outbursts.

Considering the four Atlantic Steel factors, the NLRB held that Cannon-El’s conduct was protected, and that Meyer Tool had violated Section 8(a)(1) of the NLRA by contacting law enforcement and by suspending Cannon-El and ultimately terminating him.

Being an employer is not easy in today’s world, as demonstrated by this case. Management and HR personnel must be trained to act professionally when addressing employee complaints protected under the NLRA. Failure to do so may result in the NLRB finding that an employee’s arguably improper conduct was caused by the employer’s unprofessional conduct.

To contact Slade Sokol about this or other employment-related issues, call (208) 562-4889.  



Practice Areas