The opinion
WELLFORD, Circuit Judge,
dissenting.
For the reasons stated in N.L.R.B. Chairman Dotson’s dissent, I also disagree with my colleague’s decision, which concluded that Marina engaged in concerted activity “when he individually complained to management that his check did not include an unloading payment to which he felt entitled.” (J.A. 4). Marina’s prior meeting with operations manager Denman in early October, 1981 concerned a separate issue, the percentage employees were being paid on gross revenues from hauling. 1 I agree with Chairman Dotson’s analysis that “there is no evidence to support the view that the 3 November complaint involved concerted activity.” (emphasis added, J.A. 4). At the time of this later incident over an unloading payment on one particular trip involving Marina, he made no reference whatever to the earlier disagreement and argument. Marina was discharged following the later heated incident when JMC Transport’s management reasonably believed he had beer on his truck contrary to its rules. The discharge, then, did not involve any concerted activity on the part of Marina.
Furthermore, petitioner was justified in my view for discharging Marina by reason of his misconduct and inflammatory behavior towards his superiors. A third party testified, and Marina did not deny that he had addressed Owens as a “white bitch” and Denman in an even more demeaning way, and threatened to “get them.” On the later occasion, shortly before his termination, he accused them of taking his money and by his own admission “went to pieces” and “lost self control” in railing against them and the employer JMC Transport because they did not pay his own claimed unloading pay. At no time in this abusive confrontation did Marina discuss any other employee’s unloading pay. The ALT characterized Marina’s conduct as “extremely intemperate,” and acknowledged that it gave Respondent “ample grounds to discharge” him.
I conclude that Marina was not engaged in protected activity in his uncontrolled confrontation with management in November. Even if he were deemed to be so engaged, however, I would deny him the protection he seeks under the circumstances.
An employee may engage in concerted activity in such an abusive manner that he loses the protection of § 7. N.L.R.B. v. City Disposal Systems, Inc., 465 U.S. 822 , -, 104 S.Ct. 1505, 1514 , 79 L.Ed.2d 839, 853 (1985).
The abusive conduct here occurred within a few days of his discharge. It was related to the discharge, and similar conduct has been held to foreclose a claim of protected activity. See New Process Gear, 249 N.L.R.B. # 158 (1980). The Board has taken a recent more restricted view of concerted activity to require action “with or on the authority of other employees,” as noted in the majority opinion. See Meyers Industries, Inc., 268 N.L.R.B. 493 (1984) remanded sub. nom., Prill v. N.L.R.B. 755 F.2d 941 (D.C.Cir.1985). There was no action by authority of other employees taken by Marina in this case.
I would deny enforcement of the Board’s order accordingly.
. See footnote 1 of the majority opinion. The parties do not seem to disagree that on this issue the drivers were being paid the same amount computed on a different basis calculated on a slightly changed percentage. Thus, in any event, Marina obviously had no legitimate complaint about the change in percentage adversely affecting him or any other similarly situated driver.