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Reinstatement Not Required Where Employee Later Engaged in Unprotected Misconduct

YouAreFiredGood news for employers: initial protected activity will not entitle a repeat offender to reinstatement.  In its decision in Human Services Projects d/b/a Teen Triumph, 32-CA-25262 (February 6, 2012), a Board majority held that an unrepresented employee who had been discharged in violation of the NLRA lost the right to be reinstated when, several months after the discharge, he accosted a former coworker who was still employed by the respondent employer and verbally abused her in a “profanity-laced tirade” about a matter unrelated to his discharge. The Board held that such conduct made the former employee “unfit for further service,” and required the employer to reimburse the employee for lost pay and benefits from the date of discharge until the date that he accosted the former co-worker. The Board denied the request for reinstatement.  

Conduct related to otherwise-protected activity can lose its protection and provide a lawful basis for discharge or a denial of reinstatement if it is “so egregious as to take it outside the protection of the Act, or of such character as to render the employee unfit for further service.” The Board found that the employee’s conduct immediately following his discharge – refusing to leave the premises, challenging a supervisor who ordered him to leave, and ultimately getting arrested – did not fall to that level. The later tirade against a coworker was the conduct the Board found rendered him unfit for further service.

The Board had found that the employee was unlawfully discharged for engaging in protected concerted activity.  That activity consisted of repeated criticism of the employer’s failure to provide a pay increase: the employee was outspoken about the issue in a staff meeting, he wrote at least two letters to the Board of Directors, and he handed out copies of one of the letters to his coworkers.  The Board’s finding that the employee was engaged in protected concerted activity and that discharging him because of that activity violated the Act is a good reminder of two important principles. 

First, an employee need not be represented by a union in order to be protected by the Act. Here, neither the employee nor his coworkers were represented by a union; the decision pointed out that under settled law employees having no bargaining representative nonetheless have the right under Section 7 of the Act to engage in concerted activity for mutual aid and protection, and that an employer who disciplines, threatens, restrains, or coerces employees because of such activity violates the Act.

Second, the Act’s protection for concerted activity applies to efforts to initiate group action; an employee who undertakes such efforts has the protection of the Act even before any group action results or even if group action never results. The employee here was found to be “engaged in the initiation of group action when he, in the presence of other employees, protested [the employer’s] decision not to grant a wage increase.”

Finally, the case serves as a reminder that a seemingly logical, relatively innocuous statement by an employer may be held to violate the Act if the statement can be interpreted as a threat against employees because of their protected activity. In Human Services Projects, the Board found a separate violation of the Act occurred when an employer representative told employees in a staff meeting that if they were not satisfied with working conditions they should quit their jobs and work elsewhere.

Photo credit: Diego Cervo

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