stating with regard to the employee’s threat to harm a supervisor and telling him to shut up that “[a]n employer cannot provoke an employee to the point where she commits such indiscretion . . . and then rely on this to terminate her employment” and that “[t]he more extreme an employer’s wrongful provocation the greater would be the employee’s justified sense of indignation and the more likely its excessive expression”
How later courts described this case
- stating with regard to the employee’s threat to harm a supervisor and telling him to shut up that “[a]n employer cannot provoke an employee to the point where she commits such indiscretion . . . and then rely on this to terminate her employment” and that “[t]he more extreme an employer’s wrongful provocation the greater would be the employee’s justified sense of indignation and the more likely its excessive expression”
- stating that a “substantial evidence” challenge presented a “familiar question”
- in rejecting employer’s argument that an employee was terminated for her verbal outbursts rather than for her pro-union activities in violation of the National Labor Relations Act, court states that it could not “disregard the fact that the unjust and discriminatory treatment of [the employee] gave rise to the antagonistic environment in which [her] remarks were made,” that to accept the defendant’s argument regarding a legitimate reason for firing the employee "would be to provide employers a method of immunizing themselves from. the only real sanction against violations of [the statute],” and that “refusal to reinstate [the employee] would put a premium on the employer’s misconduct”
- “An employer cannot provoke an employee to the point where she commits ... an indiscretion ... and then rely on this [indiscretion] to terminate her employment.”
Written by the judges who cited it.
The opinion
ALBERT V. BRYAN, Circuit Judge
(dissenting in part):
How the Board could order reinstatement of Rena Vaughan is incomprehensible. On appearing for work on the morning of June 10, 1963, she was sent from her duty station in the clipping section to see Supervisor Dorothy Ellis, who then put her to work blocking hats. She had been trained by the company as a blocker and had worked in that capacity from the inception of her employment in June 1962 until March 1963 when she went to the clipping department.
Near the end of the day Trivette, the first floor supervisor, advised Rena Vaughan that she would be laid off at the close of the day because of insufficient work in the blocking section. Vaughan asked about her vacation pay and complained that her lay-off was unfair because there was still work to be done in clipping. Trivette ' commented on her union activities and asked if she had been holding union meetings in different homes. Vaughan refused to reply.
Just before quitting time, Vaughan remarked to Supervisor Ellis about her discharge, but Ellis assured her that it was only a temporary suspension and she would receive her usual vacation pay. Whereupon Vaughan accused Ellis of spying on a union meeting which had been held at Vaughan’s home a few *175 nights earlier. She said Ellis was then in a car owned and driven by her church’s minister. Ellis admitted this to be true, explaining that they were coming from a church meeting. Then Vaughan charged Ellis with “having improper relations with the minister” and stated that she was going to tell the church and the minister’s wife of it. She denounced Ellis as “a dirty woman” and declared that neither Ellis nor Triv-ette were going to sleep any more at night. The minister testified that he had in truth driven Ellis along the street of Vaughan’s home on this particular occasion, and had done so a number of times before when he drove her back from church meetings. The Board finds all these incidents to be true.
On June 17, a week after Vaughan’s suspension, she returned to the respondent’s plant in answer to a job advertisement. On this visit she was quoted as stating “I am going to beat Dorothy Ellis if it is the last thing I do”. At this employment interview when a vice president of the company sought to interpose, he was told by Vaughan several times to “shut fip” for she was talking to someone else. In leaving, she made more insulting remarks to other employees.
Even if the worst implication be drawn from the change of assignment and her lay-off — that it was punishment for her pro-union activity- — surely her immediate and subsequent deportment forfeited any right to reinstatement. However mistaken the decision of the supervisors, her threats to disgrace and attack them personally should not be countenanced.
But even further, if this deportment is to be condoned as a justifiable, forgivable, emotional reaction to her suspension, her outburst a week later can hardly be readily ignored. The interval provided adequate cooling time. Moreover, she returned to procure a different position. Nevertheless she chooses to insult —and repeatedly — a vice president while at the same time asking for employment. This behavior scarcely evinces a willingness to work cooperatively or to accept the discipline of the plant. It was defiance of the employer at the outset of reemployment — an attitude warranting immediate rejection of her application.
Notwithstanding, the Board finds the employer at fault. Then it rewards Vaughan’s affronts and insurgency by reinstatement. Payment of unearned wages is ordered not simply for the period between her suspension and final termination of employment but beyond the latter event. Obviously management’s authority in the factory is effectually devastated. This I cannot believe compelled by common sense or the National Labor Relations Act. To think the kindly admonition of the Court that in the future she really ought to behave will restrain her and return control to the owner is to scrap experience.