In not just one recent case, but two:
* “During a meeting about commissions, minimum wage, and employee breaks [at a Yuma, Ariz. car dealership], an employee lost his temper, angrily calling his supervisors words such as [obscenities omitted]. He also stood up, shoved his chair aside, and told them they would regret it if they fired him. Unsurprisingly, that tirade resulted in the employee’s termination. Astoundingly, in Plaza Auto Center (5/28/14), the NLRB concluded that the termination was an unlawful violation of the employee’s rights to engage in the protected concerted activity.” [Jon Hyman, Ohio Employer's Law Blog; Brennan Bolt, Labor Relations Today]
* “Starbucks cannot fire a union activist employee who cursed at a manager in front of customers, the National Labor Relations Board has ruled for the second time. Joseph Agins was active in trying to unionize four Manhattan Starbucks coffee shops between 2004 and 2007.” His repeated imprecations, sometimes in the presence of customers, included “this is [BS],” “do everything your damn self,” “about damn time” when the manager arrived to help, and “go … yourself”. A protected pattern of behavior under federal labor law, the NLRB ruled. “The board ordered Starbucks to offer Agins his old job or a substantially equivalent position, compensate him for any loss of earnings and other benefits, and remove from its files any references to the unlawful firing.” [Seattle Post-Intelligencer]
Compare the separately developed field of “hostile-environment” law, in which the employer may be held liable for years’ worth of back pay if it does not separate from the workplace an employee who repeatedly confronts a co-worker with belligerent and profane abuse (& Scott Greenfield).
In an April decision, the National Labor Relations Board found largely unlawful a hospital’s employee handbook policy as follows:
…11. We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.
16. We will represent [the hospital] in the community in a positive and professional manner in every opportunity.
21. We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.
The reason? Under NLRB doctrine, in both non-union and union workplaces, negative discussion of managers and other co-workers could count as “protected activities” linked to the potential for concerted labor action.
[Jon Hyman, Ohio Employer's Law Blog, on the April case of Hills & Dales General Hospital (PDF)]
Washington, D.C. intern hit with NLRB subpoena over blogging work for policy group critical of unions [Tucker Nelson, National Review]
Northwestern athletes’ “college football participation = paid work to be governed by labor laws” argument may boomerang with a whopping tax bill [TaxProf, Bleacher Report on NLRB giving nod to idea]
Although the D.C. Circuit Court of Appeals has ruled its composition invalid, the National Labor Relations Board (NLRB) “declares that it will keep doing business as if nothing happened.” [WSJ via Fed Soc Blog]
This is by no means the first face-off between the D.C. Circuit and an agency resistant to its will: for another, see this 1981 Regulation account (PDF, scroll to page 11, “Reversing the D.C. Circuit at the FCC”) of a series of showdowns between the appeals court and the Federal Communications Commission. That one ended happily for the independent agency, but then the FCC may have been on firmer ground going to bat for its right to exercise policy discretion as an expert agency than it would have for its right to be constituted improperly through unconstitutional appointments.