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When does an employee’s conduct result in loss of NLRA
May 2018
Idaho Employment Law Letter

The National Labor Relations Board (the Board) recently confirmed that an employee’s conduct must be significantly egregious before that employee loses the protection for concerted activity afforded by the National Labor Relations Act (NLRA or the Act). The Board also confirmed that an employer’s management and human resource personnel are required to act in a professional manner in handling employee complaints and disputes. If there is failure to act in a reasonable and professional manner, the Board will consider management’s conduct as being detrimental to the employer’s defense to an unfair labor practice charge.  Read on to learn just how bad an employee’s conduct has to be, and how management should not act when dealing with employee complaints and disputes.

The NLRA and the Atlantic Steel Factors. 

            As you may be aware, Section 8(a)(1) of the NLRA makes it an unfair labor practice for employers “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” by Section 7 of the NLRA.  Rights guaranteed by Section 7 of the Act include the right to “form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 

            When an employee is disciplined for conduct in connection with concerted activity, the question arises as to whether the employee’s conduct “is sufficiently egregious or opprobrious to remove it from the protection of the Act.”  In the 1979 NLRB case, Atlantic Steel Co., the Board set forth a four factor balancing test to analyze this question. Those factors are (1) the place of the discussion where the conduct occurred; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and, (4) whether the employee’s outburst was provoked by the employer’s unfair labor practices.  In applying this test, the Board also recognizes that employees are “permitted some leeway for impulsive behavior when engaged in protected activity” because “disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses.”  This so-called “leeway,” however, is “balanced against an employer’s right to maintain order and respect.”  

            Let’s see how these factors were applied to a real-life scenario where, arguably, both an employee and management handled a dispute in a less-than-ideal fashion. 

Background Facts of Meyer Tool, Inc. and William Cannon-El III.

               Meyer Tool is a corporation that provides manufacturing and other services for aerospace and power generation industries. Cannon-El worked the night shift at Meyer Tool’s manufacturing facility in Cincinnati, Ohio, where he was assigned to the New Product Introduction (NDI) department.            

            The underlying facts of this case arose when Meyer Tool started to experience production-related issues in Cannon-El’s department, which resulted in night-shift employees and day-shift employees pointing the finger at each other as being the cause of the production-related issues. This resulted in management taking action and announcing at a night-shift employee meeting that a new position had been created and filled by a current employee, who would be responsible for overseeing the area in which Cannon-El worked.  Cannon-El as well as other night-shift employees, did not believe that the new “babysitter” position was needed, and disputed that the person selected to fill that position was actually qualified for that position.  A heated argument ensued.  Cannon-El accused management of lying and not caring for employees, while one of the managers present yelled at Cannon-El – their faces mere inches apart. As a result of this encounter, Cannon-El and other employees decided to file a complaint with Meyer Tool’s human resources department. 

            Prior to arriving for his night shift the following day, Cannon-El went to the company’s human resources office, which was located in a building separate from the production facility where Cannon-El normally worked.  He then obtained a complaint form, filled it out, and turned it into a human resources employee. A discussion arose between a human resources employee and Cannon-El concerning the bases for his complaint.  This discussion escalated into another heated argument.  In increasingly loud voices, Cannon-El claimed that he had been assaulted and threatened the prior evening, which he thought was racially motivated, while the human resources employee made several statements that were dismissive of Cannon-El’s claims.  After a few minutes of this interaction, the human resources employee told Cannon-El that he was being aggressive, and instructed him to leave her office, clock out, and to go home or she would call the police.  Cannon-El did not do so, and the police were called.  He subsequently retreated to the lobby entrance area and called his sister to come to the facility so that she could be a witness when the police arrived.  The police spoke with all involved and directed Cannon-El to leave the premises. 

            The next day, Cannon-El was informed that the company was investigating the incidents and that he was not allowed to return to work until notified.  Meyer Tool commissioned an investigative committee, which recommended training for Meyer Tool’s management and human resources employee – specifically finding that “their behaviors contributed to the escalation of both incidents.”  The committee further recommended that Cannon-El be terminated on the bases that his “behavior was intentionally intimidating and threatening, and that he escalated the situation by repeatedly refusing to leave the premises when requested to do so.” Notably, the committee provided no explanation as to what exactly Cannon-El did that was intimidating or threatening.  Meyer Tool’s owners considered and adopted the committees’ recommendations, and Cannon-El was terminated. 

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

The Board’s Unfair Labor Practice Charge Analysis.           

            The Board first determined that Cannon-El, and the other employees involved, were engaged in protected, concerted activity when they complained orally and in writing about the company’s creation of the new position, the qualifications of the individual selected for the position, and the reasons why management believed the new position was necessary.  These issues were found to be related to wages, hours, and/or other terms and conditions of employment, which are protected under the Act. 

            The Board next analyzed whether Cannon-El lost the protection of the Act, pursuant to the Atlantic Steel factors, due to his conduct after he turned in his complaint and refused to leave the company’s human resources office.  The first factor the Board addressed is the place of the discussion where the conduct occurred.  This requires consideration of issues such as whether the conduct occurred in the work area or during working time, whether other employees or customers observed the conduct, whether the conduct disrupted the employer’s operations, and/or whether the conduct undermined workplace discipline.  Here, the Board reasoned that the heated exchange occurred in the company’s human resources office, which was in a separate building away from other employees.  This office is where Meyer Tool expects its employees to go to file complaints, and to deal with disputes concerning wages, hours, and working conditions, all of which the Board found “are likely to engender ill feelings and strong responses, including expressions of fear, anger, or frustration.”  The Board also reasoned that, while Cannon-El’s conduct did incur in the presence of other employees, and, in fact, there was a complaint filed by an employee that it made her feel unsafe, those employees continued working with their doors open.  For these reasons, the Board found that the location of the discussion was reasonable, and that this factor weighed in favor of the Act’s protection. 

            The next factor addressed was the subject matter of the discussion.  Here, the Board recognized that Cannon-El’s discussion with the human resources employee was protected, concerted activity, which revolved around the complaint he was filing and the way he was treated by management during the night-shift meeting the night before.  The Board therefore found that this factor weighed in favor of protection under the Act. 

            With respect to the third factor – whether the nature of the employee’s outburst favors protection – the Board 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.’”  This is a factor that is viewed objectively and is utilized to determine whether the conduct at issue was threatening.  Here, Meyer Tool argued that Cannon-El’s conduct was intentionally intimidating and threatening.  The Board rejected this argument and found that while he had refused to leave the human resources office, Cannon-El had neither used profanity nor engaged in conduct that was physically threatening.  Furthermore, the company failed to specifically identify what conduct of Cannon-El was threatening or intimidating. 

            The Board also considered whether the human resources employee had provoked Cannon-El.  On this issue, the Board determined that Cannon-El’s conduct was in “direct response” to the conduct of Meyer Tool’s human resources employee.  She was dismissive of Cannon-El’s complaints about managements actions the previous evening, she demanded that Cannon-El leave her office, and she threatened to and did call law enforcement if he did not leave.  The Board also noted that Cannon-El was initially calm, and only acted out of frustration due to the conduct of the company’s human resources employee.  As such, the Board found that Cannon-El would not have acted the way he did but for the human resources employee’s provocation.  Cannon-El’s conduct may have been disrespectful, rude, and defiant, but he was not acting in a violent manner.  The Board weighed this factor in favor of protection under the NLRA. 

            The last factor addressed was whether the employee’s conduct was provoked by the employer’s unfair labor practice, or, more specifically, whether the employer’s conduct evidences an intent to interfere with rights protected by the Act.  Here, the Board found that it was management that had initially harassed Cannon-El during the night-shift meeting when he raised protected, concerted issues, which ultimately led to filing of his complaint, the heated exchange with the human resources employee that followed, and the police being called.  The Board therefore determined that it was management’s conduct which constituted an unfair labor practice that provoked Cannon’s outburst. 

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

Concluding Thoughts. 

            Being an employer is not easy in today’s world.  This case reminds us of that fact, and it provides employers with some important guidance.  Most significant is that your management and human resource personnel need to be trained to act in a professional manner when addressing employee complaints.  These folks are the face of your company vis à vis your employees, and they should be expected and required to address complaints and interact with your employees in a professional manner.  Failure to do so may result in the Board, and perhaps a court, finding that an employee’s arguably improper conduct was caused by the employer’s unprofessional conduct. 

            Another important take-away from this case is that, if an employee complains about issues that are related to the terms and conditions of employment, it is likely that he or she is protected by the NLRA.  And, when employees are acting under the veil of the Act’s protection, they will be afforded considerable leeway with respect to their conduct.  Being rude, disrespectful, and defiant should be expected by management and human resources personnel. This may be shocking to some employers, and you would be best served by educating your management and human resources personnel about the behavior they should be expected to endure and how to respond to such conduct.


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