United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 6, 2001 Decided June 12, 2001
No. 00-1239
Felix Industries, Inc.,
Petitioner
v.
National Labor Relations Board,
Respondent
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Peter D. Stergios argued the cause for petitioner. With
him on the brief was Elliot Jay Mandel.
Julie F. Marcus, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the
brief were Leonard R. Page, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and Margaret A. Gaines,
Supervisory Attorney.
Before: Ginsburg, Randolph, and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: An employee telephoned his su-
pervisor to press his right under a collective bargaining
agreement to receive premium pay for working night shifts.
In the ensuing conversation the employee thrice directed
obscenities at his supervisor, for which he was promptly fired.
The National Labor Relations Board decided that the firing
violated s 8(a)(1) of the National Labor Relations Act, s 29
U.S.C. 158(a)(1), because the employee's conduct remained
protected by s 7 of that Act, 29 U.S.C. s 157, notwithstand-
ing his abusive speech. The employer now petitions for
review, and the Board applies for enforcement, of that deci-
sion.
This case turns upon the four factors the Board considers
pursuant to Atlantic Steel Co., 245 NLRB 814 (1979), to
determine "whether an employee engaged in protected activi-
ty loses the protection of the Act by opprobrious conduct: (1)
the place of the discussion; (2) the subject matter of the
discussion; (3) the nature of the employee's outburst; and (4)
whether the outburst was, in any way, provoked by an
employer's unfair labor practice." Felix Indus., Inc., 331
NLRB No. 12, slip op. at 1 (2000). The Board's analysis of
the third factor in this case was arbitrary and capricious in
that it departed from its own precedent and that of this court.
We therefore grant the petition for review and remand this
case for the Board to reweigh that factor as part of its four-
factor balancing test.
I. Background
Felix Industries, Inc. is a general contractor specializing in
the construction of highways and utilities. Salvatore Yonta, a
dockbuilder on the day shift since 1989, was assigned to the
night shift in the second week of September 1996. Yonta's
immediate supervisor at the time was Felix Petrillo, whose
father was the president of the Company.
Under the collective bargaining agreement then in place
Yonta was entitled to a "night differential": he was to be
paid for nine hours of work every time he worked an eight-
hour shift during specified hours. Upon joining the night
shift Yonta asked his shop steward about the night differen-
tial. The shop steward then consulted Petrillo, who told the
steward to consult the union; the steward thereafter told
Yonta he would receive the differential. When Yonta did not
receive the differential with his next pay check (for the period
ending September 15) he contacted the superintendent of
steam operations at his site, who told him to contact Petrillo.
After getting his checks for the periods ending September 22
and 29, again without the differential, Yonta contacted the
union's business agent, who confirmed that Yonta was enti-
tled to the extra pay.
On the morning of October 7 -- three weeks after the issue
was first brought to Petrillo's attention -- Yonta, who was at
home, called Petrillo at his office to ask about the differential.
Petrillo assured Yonta he would get "every penny" to which
he was entitled. He also told Yonta he was tired of "carry-
ing" him. Yonta, who was 42 years old, retorted that Petrillo,
who was 25, was "just a f--king kid," and added, "I don't
have to listen to a f--king kid." When Petrillo asked what
Yonta had just called him, Yonta obligingly confirmed it was
"a f--king kid." Petrillo told Yonta he would get a check
with all his hours, and Yonta was fired that same day.
An Administrative Law Judge, applying the balancing test
of Atlantic Steel, held that although "the subject matter of
the [Yonta-Petrillo] discussion was protected," Yonta "had
lost the protection" of the Act upon directing obscenities at
his supervisor, Petrillo. 331 NLRB No. 12, slip op. at 8. The
Board, with one Member dissenting, disagreed with the ALJ's
application of Atlantic Steel's four factors. Deeming Yonta's
conduct protected under s 7, the Board majority held that
Felix had violated s 8(a)(1) by firing Yonta, and ordered
Felix to reinstate him with backpay. Id. at 1-3.
II. Analysis
In Atlantic Steel Co. the Board established that
even an employee who is engaged in concerted activity
can, by opprobrious conduct, lose the protection of the
Act. The decision as to whether the employee has
crossed that line depends on several factors: (1) the
place of the discussion; (2) the subject matter of the
discussion; (3) the nature of the employee's outburst;
and (4) whether the outburst was, in any, way provoked
by an employer's unfair labor practice.
245 NLRB at 816. Felix nonetheless suggests initially that
Yonta's conduct is categorically unprotected, but it stops
short of arguing that the four-factored balancing test of
Atlantic Steel is itself unlawful. Instead, Felix argues that
the Board unreasonably applied that test to the facts of this
case.
A. Place of the discussion
In holding that the place of Yonta's discussion with Petrillo
did not weigh against protecting Yonta's conduct under the
Act, the Board first opined that a telephone conversation is
"no more or less likely a situs [than the typical workplace
setting] for the type of labor-management dispute where
intemperate language is often tolerated." The Board also
considered it important that "no other employees heard or
observed Yonta's statement to Petrillo" and that the "com-
ments were not made at work and did not have any direct
impact on worker discipline." 331 NLRB No. 12, slip op. at
2.
Felix asserts that the Board illogically assumed that pri-
vate insubordination cannot affect discipline in the workplace.
The Board, however, made no such assumption; it simply
said that Yonta's rant "did not have a direct impact on
workplace discipline," suggesting quite reasonably that any
effect would be smaller than if his outburst had occurred in
the presence of other employees.
Felix also argues that because Yonta's obscene statements
were made outside the formal grievance process, to which the
Board accords special protection, the place of discussion
should weigh against protection. That is a non sequitur.
The Board implied that the place weighed neither in favor of
protection, as it would if the obscenities had been used in a
formal grievance setting, nor against it, as it would if they
had been hurled at Petrillo in the presence of other employ-
ees. That resolution certainly is not arbitrary and capricious.
B. Subject matter of the discussion
There is no dispute that Yonta telephoned Petrillo to
pursue his collectively-bargained right to be paid the night
differential. Accordingly, the Board, along with the ALJ,
determined that the subject matter of their conversation
"concerned Yonta's rights under the collective-bargaining
agreement and thus constitute[d] protected ... activity." Id.
at 2, 7-8. Felix therefore cannot credibly argue that the
subject matter of the conversation does not weigh in favor of
protection. Still, it tries. Felix parses Yonta's words to show
that the obscenities, not surprisingly, had nothing to do with
Yonta's collective bargaining rights. That of course misses
the Board's point: As the Board explained, the obscenities
were "intertwined with [the] protected activity" -- as they
are in every case governed by Atlantic Steel -- and the
Board's task was to determine whether the employee lost the
protection of the Act as a result of the obscenities. Id. at 3.
Felix's attempt to bifurcate the conversation is unavailing,
therefore.
C. Nature of outburst
We agree with Felix that the Board's treatment of the
nature of Yonta's obscene eruption is problematic. All the
Board said on this score is that "Yonta's conduct consisted of
a brief, verbal outburst of profane language, unaccompanied
by any threat or physical gestures or contact." From that
the Board reasoned that this factor did not "weigh[ ] in favor
of Yonta losing the protection of the Act." Id. at 2.
Recall that Yonta's outburst -- though "brief" and "ver-
bal" -- consisted of calling his supervisor a "f--king kid" no
less than three times, and insisting that Yonta need not listen
to him. That no threat or physical violence accompanied this
insubordinate vitriol cannot, under established law, prevent it
from "weigh[ing] in favor of ... losing the protection of the
Act."
In Atlantic Steel the Board expressly disavowed any rule
whereby otherwise protected activity "would shield any ob-
scene insubordination short of physical violence." 245 NLRB
at 817. Yet the Board's treatment of the third Atlantic Steel
factor in this case runs toward precisely such a rule. In
addition, this court previously rejected a suggestion from the
Board that employees engaging in protected activity "could
not be dismissed unless they were involved in flagrant, vio-
lent, or extreme behavior"; as we pointed out, s 10(c) of the
National Labor Relations Act, 29 U.S.C. s 160(c), permits
discharge for "cause" short of that. Aroostook County v.
NLRB, 81 F.3d 209, 215 n.5 (1996); see also Republic Avia-
tion Corp. v. NLRB, 324 U.S. 793, 803 n.10 (1945) ("The Act,
of course, does not prevent an employer from making and
enforcing reasonable rules covering the conduct of employees
on company time"). If an employee is fired for denouncing a
supervisor in obscene, personally-denigrating, or insubordi-
nate terms -- and Yonta here managed all three with econo-
my -- then the nature of his outburst properly counts against
according him the protection of the Act.
The Board here truly does not contend otherwise; rather,
it observes that it could, notwithstanding the nature of Yon-
ta's outburst, deem his conduct protected as a result of its
overall balancing of the four factors. That is correct but
irrelevant; it does nothing to rehabilitate the Board's actual
treatment of the third factor in its order, where it blandly
asserts that Yonta's statements did not "weigh[ ] in favor of
Yonta losing the protection of the Act." Under the applicable
precedents Yonta's statements do weigh against protection.
Whether they weigh enough to tip the balance in that di-
rection is for the Board to decide on remand.
D. Provocation by unfair labor practice
The Board, interpreting Petrillo's comment that he was
tired of "carrying" Yonta as "convey[ing] at least an implicit
threat that Yonta could lose his job for having engaged in the
protected activity," found that Petrillo committed an unfair
labor practice, which in turn provoked Yonta's obscenities.
331 NLRB No. 12, slip op. at 2. Felix challenges those
factual determinations. First, Felix argues there is no evi-
dence in the record that shows Petrillo's "carrying" comment
preceded rather than followed Yonta's vulgar outburst. Actu-
ally, there is substantial and uncontradicted evidence to that
effect: Yonta testified that the conversation unfolded in that
order, whereas Petrillo could not recall the sequence.
Second, Felix objects to the Board's characterization of
Petrillo's "carrying" remark about Yonta as an implied threat.
The ALJ and the dissenting Member thought Petrillo's re-
mark referred to Yonta's sub-par performance, not to his
claim to the night differential. Id. at 4, 7. There is evidence
in the record both that Yonta's performance was indeed sub-
par and that Petrillo tried to mollify Yonta, not to meet his
demand for the differential with a threat. Still, the record as
a whole contains substantial evidence to support the Board's
characterization. The Board reasonably found that "Petrillo's
remark was angrily made in response to Yonta's pressing his
right to extra pay under the contract. Although Petrillo
credibly testified that he had previously received supervisory
complaints about Yonta's work, Petrillo did not testify that he
mentioned these complaints in the phone discussion." Id. at
2. And, as the Board points out, Petrillo's statement must be
evaluated from Yonta's perspective: Petrillo's intent in mak-
ing the remark about carrying Yonta does not necessarily
mirror the impression it reasonably could have made upon
Yonta. See NLRB v. Gissel Packing Co., 395 U.S. 575, 617
(1969). Therefore, we find no reason to disturb the Board's
treatment of this factor.
III. Conclusion
Because the Board's offhand treatment of the nature of
Yonta's outburst departs from precedent, we hold that it is
arbitrary and capricious. Upon remand of this case, the
Board will need to reexamine that factor as part of its overall
weighing of the Atlantic Steel factors. In doing so it must
either adhere to precedent or else justify, if it can, its
departure therefrom. Accordingly, Felix's petition for review
is granted, the Board's application for enforcement is denied,
and this matter is remanded to the Board for further pro-
ceedings consistent with this opinion.
So ordered.