NLRA can protect abusive behavior by union employees

Cases alleging that management engaged in unfair labor practices arising from union activity in the workplace are not that common in the Second Circuit, but I am always glad to read them because they remind me that otherwise problematic behavior by employees may be protected under the National Labor Relations Act if the employee did so in furtherance of legitimate union activity.

The case is Meyer Tool, Inc. v. National Labor Relations Board, a summary order issued on February 26. The NLRB found Meyer Tool had engaged in an unfair labor practice in suspending and firing employee Cannon-El. They even called the police on the guy. Cannon-El said he was merely engaging in concerted union activity, which protects him under the Act.

It all started when management decided to create a new position, night-shift supervisor. Cannon-El and two others raised concerns about this, including whether the selectee was qualified and whether management had offered a bogus explanation for the new position. Management then said the night shift was not doing a good job, and Cannon-El responded by complaining about the air quality in the workplace. Before you know it, the company's vice president and Cannon-El are yelling at each other, their faces only inches apart.

Things then got worse. Cannon-El and two others went to HR to file complaints and Cannon-El ended up in another argument with someone from management, what the Court of Appeals (Kearse, Jacobs and Walker) called a "heated verbal exchange," that I am sure included foul language. An HR employee, Adams, threatened to call the cops if Cannon-El did not leave the office and began counting to three. "Adams said 'one' and Cannon-El said "two, three" and said "I have done nothing wrong." This brings Cannon-El into first-place for the gutsiest employee in the Second Circuit for 2019. The police arrived and, to make a long story short, Cannon-El got fired.

Meyer Tool violated the National Labor Relations Act, the Court of Appeals says, because he the NLRB had a basis to find he suffered retaliation for protected group-activity. The Second Circuit then notes that, in certain cases, the Act protects employees who behave abusively toward management. While the company says it was able to fire Cannon-El because he refused to leave the HR office and thus trespassed on company property, the Court of Appeals notes the NLRB's prior decisions say otherwise. Here is the crux of the Court's reasoning:

Substantial evidence supports the Board’s conclusion that Cannon‐El remained protected by the Act. His complaint took place in Meyer Tool’s human resources department, away from production areas. The Board found that the conversation, while heated, did not disrupt any other employee’s work or even cause those nearby to close their office doors. Cannon‐El’s discussion with Adams was protected activity: questions and concerns regarding management’s treatment of the night shift. The argument lasted a few minutes and involved raised voices on both sides, but the Board found that Cannon‐El did not use obscenities, engage in physically intimidating conduct, make threats of physical harm, or disturb customers. Cf. NLRB v. Starbucks Corp., 679 F.3d 70, 79‐80 (2d Cir. 2012) (protection lost if outburst containing obscenities occurs in the presence of employer’s customers).