Angry retort protected by NLRA
The National Labor Relations Act (NLRA) protected two employees who were fired for telling an electrical superintendent that it was going to get ugly and he had better bring [his] boxing gloves. Surprised? Heres why the National Labor Relations Board ordered the company to reemploy the two men and pay their wages for the lost work time. The company wanted employees working at a construction site to break in place, because the break shack was five minutes away. The employees, however, believed their work area was too unsanitary for eating and drinking. When they couldnt agree, a superintendent distributed warnings to everyone for taking too long for breaks. Two of the employees responded with angry comments when they received the warnings. The company decided to terminate them under its zero tolerance policy against workplace violence.
The Board ruled in the employees favor for a number of reasons. The company distributed the warnings publicly, to the whole crew, so it was unreasonable for the company to complain that the employees challenged the superintendent publicly. The subject of the employees protest was the enforcement of working conditions that the employees felt were unsanitary and unsafe, so the subject matter definitely was a protected topic. Also, the employees comments werent accompanied by any physical action and were too vague to be reasonably perceived as an actual threat of violence. And to top it off, the next day the union and the company were able to agree on a location in the building that was acceptable for taking breaks (Kiewit Power Constructors Co., NLRB, Aug. 2010).
Tips: The NLRA protects most nonmanagement employees who band together to protest wages, hours or working conditions, regardless of whether a union is involved. When the NLRA applies, employees have a lot more leeway to express their opinions than you might think. For further guidance, see our Legal Guide, Handling Workplace Protests and Complaints (1238).