A 19-year employee and active union delegate, Patrick Atkinson, led 15 employees into a nursing home administrator’s office and stood against the wall. Atkinson told the administrator that the employees were concerned about other employees who had been suspended. He held a grievance in his right hand and touched it to his left palm “as a gesture indicating emphasis.” The administrator announced she was uncomfortable and left her office. The nursing home terminated Atkinson for leading the protest.
The Board considered four factors in determining whether Atkinson’s behavior lost the protection of the National Labor Relations Act: (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 provoked by the employer’s unfair labor practices. While the first three factors weighed in favor of Atkinson, the fourth weighed in favor of the nursing home because there was no evidence the home engaged in any unfair labor practices that provoked the protest. The Board concluded the nursing home unlawfully terminated Atkinson.
First, the administrator’s office was away from patient care areas, the protest was not overheard by patients or visitors, and it did not disturb the employer’s operations. Second, the Board concluded that Atkinson’s statements to the administrator related to disciplinary actions and other terms of employment, which were protected. Third, the Board found the “nature of the employee’s outburst” was “extremely mild” and that there was no other menacing or abusive behavior.
Companies must weigh multiple factors before deciding to discipline an employee, and the Board probably got this case right. If the starting point is that employees are allowed to call their boss a MF, then Atkinson’s peaceful protest is easily protected. The fact that several people quietly crowded an office is simply not enough to lose protection of the Act. Nonetheless, managers faced with similar demonstrations at their workplaces should consult legal counsel before taking adverse employment action against the agitators.
Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at firstname.lastname@example.org.