Dunn-Edwards Corp. (21-CA-211066)

FederalAgency guidance

Ask Donna

How this section applies to your facts.

NLRB Division of Advice Memoranda (rolling 10-year window) › Dunn-Edwards Corp. (21-CA-211066)

This text was captured on Aug 14, 2026. It is a snapshot, not a live feed, so check the official code before relying on it.

Text

Case 21-CA-211066

- 2 -

from the conversation. The Charging Party is

and is

to a

and has

After that conversation, the Charging Party went to

mmediate supervisor,

the

“Supervisor”). Without disclosing the

identity of Coworker 1, the Charging Party described the incident with the

rant.2 The Supervisor then describe

past experience with

omment in

the workplace.

The Charging Party then ran into another employee, Coworker 2. The Charging

Party told Coworker 2 about the upsetting comments made by Coworker 1 and asked

how

hould handle the situation. Coworker 2 responded that

believed

Coworker 1 to be

because Coworker 1 had previously made a

offensive

comment to

at work.3 Coworker 2 described the comment to the Charging Party.

Coworker 2 said that

told the Charging Party at the end of this conversation that

should report Coworker 1’s comments to management.4

The Supervisor reported the conversation to

superior, the

The

asked the

to investigate the incident. That same day, the

met with the Charging Party. The

said that

had heard the Charging

Party was upset and asked what happened. The Charging Party told the

what Coworker 1 had said and, after the

asked, identified Coworker 1’s

name.5 The Charging Party also told the

about the previous

2 The Employer states that the Charging Party informed the Supervisor during this

conversation that

had already told

employees, Coworkers 2 and 3, what

Coworker 1 had said and asked them for advice regarding what

should do. Both

Coworker 2 and Coworker 3 are

, as is the Supervisor. The Charging Party does

not recall discussing the incident with Coworker 2 before talking with the Supervisor,

or ever discussing it with Coworker 3. Resolution of this discrepancy is not necessary

for purposes of our analysis.

3 Coworker 2 had discussed this

offensive remark with several other

employees and reported it to management

Coworker 2 and Coworker 3 are

, as is the Supervisor. The Charging Party does

not recall discussing the incident with Coworker 2 before talking with the Supervisor,

or ever discussing it with Coworker 3. Resolution of this discrepancy is not necessary

for purposes of our analysis.

3 Coworker 2 had discussed this

offensive remark with several other

employees and reported it to management. There is no evidence as to whether the

Employer took action to address that comment.

4 The Charging Party has stated that they did not discuss filing a complaint about

Coworker 1’s rant.

5 The

claims that the Charging Party did not identify Coworker 1 at this

meeting even after

asked, and that

took the position that

identity was

(b)(6), (b)(7)(C)

(b)(6), (b)(7)(

(b)(6), (b)(7)(C)

(b)(6), (b)

(b)(6), (b)(7)(C)

(b)(6), (b)(7

(b)(6), (b)(7)(

(b)(6), (b)(7)(C)

(b)(6), (b)

(b)(6), (b)(7)(

(b)(6), (b)(7)

(b)(6), (b)(7)(C)

)(6), (b)(7)(C)

(b)(6), (b)(7)(C)

(b)(6), (b)(7)(

(b)(6), (b)(7)(C)

(b)(6), (b)

(b)(6), (b)(7)(C)

(b)(6), (b)(7

(b)(6), (b)(7)(

(b)(6), (b)(7)(C)

(b)(6), (b)

(b)(6), (b)(7)(

(b)(6), (b)(7)

(b)(6), (b)(7)(C)

Case 21-CA-211066

- 3 -

offensive comment that Coworker 1 had made to Coworker 2. The

shared

own past experiences with discrimination. The

asked the Charging

Party whether

wanted anything done about the comments. The Charging Party

said

did not know, but

should do whatever needed to be done.

After this meeting, the

met with Coworker 2 and confirmed the

Charging Party’s story.6 Coworker 2 did not make any complaint about the Charging

Party discussing Coworker 1’s

remarks with

. Nor is there evidence that any

other employee complained about the Charging Party’s behavior.

Several months later, the

and the

met with the Charging Party

again. The Charging Party described what Coworker 1 previously had said to

. The

claims that

then said that

needed to know who had made the comments

because that kind of commentary was not appropriate in the workplace. The

claims that the Charging Party then identified Coworker 1. The

asked the

Charging Party whether Coworker 2 knew about Coworker 1’s comments, and the

Charging Party confirmed that

did.

The

and the

then met with Coworker 1 and asked

about

the comments. Coworker 1 admitted to making the comments to the Charging Party.

The Employer later gave Coworker 1 a final warning for making the

comments

in the workplace. Coworker 1 then resigned.

On about September 6, the

the

and the Supervisor called the

Charging Party into the

office for a meeting. They informed the Charging

Party that

was being terminated for repeating Coworker 1’s

comments to

other employees, especially to

employees

Charging Party.

The Employer later gave Coworker 1 a final warning for making the

comments

in the workplace. Coworker 1 then resigned.

On about September 6, the

the

and the Supervisor called the

Charging Party into the

office for a meeting. They informed the Charging

Party that

was being terminated for repeating Coworker 1’s

comments to

other employees, especially to

employees. The Employer claimed

that repeating the comments violated the Charging Party’s final warning as being

unprofessional.

The Charging Party was upset by

termination and went back to

office

next door and began to pack up

artwork and other personal belongings.

The

entered the office and started taking down some of the artwork, and in

response the Charging Party protested loudly. After the Charging Party had quickly

irrelevant because it was not a work-related issue. Resolution of this credibility

dispute is not necessary for purposes of our analysis.

6 The Employer says that in addition to Coworker 2, the

also met with

Coworker 3, who confirmed discussing the incident with the Charging Party. Whether

the Charging Party met with one or two other employees is not determinative for the

analysis in this case.

(b)(6), (b)(7)(C)

(b)(6), (b)(7

(b)(6), (b)(7)(C)

(b)(6), (b)(7)(

(b)(6), (b)(

(b)(6), (b)(7)(C)

(b)(6), (b)(7)

(b)(6), (b)(7)(C)

(b)(6), (b)(7)(

(b)(6), (b)(7)(C)

(b)(6), (b)

(b)(6), (b)(

(b)(6), (b)(7)(C)

(b)(6), (b)(7

(b)(6), (b)(7)(C)

(b)(6), (b)(7)(

(b)(6), (b)(7)(C)

(b)(6), (b)(7)(

(b)(6), (b)(7)(C)

(b)(6), (b)(7)(

(b)(6), (b)(7)(C)

(6), (b)(7)

(b)(6), (b)(7)(C)

(b)(6), (b)(7)(

(b)(6), (b)(7)(C)

(b)(6), (b)

(b)(6), (b)(

(b)(6), (b)(7)(C)

(b)(6), (b)(7

(b)(6), (b)(7)(C)

(b)(6), (b)(7)(

(b)(6), (b)(7)(C)

(b)(6), (b)(7)(

(b)(6), (b)(7)(C)

(b)(6), (b)(7)(

(b)(6), (b)(7)(C)

Case 21-CA-211066

- 4 -

gathered

belongings, the

and

Supervisor escorted

out of the

building. During this process, the Employer says that the Charging Party yelled

things like “this is bullshit,” called

Supervisor a “bitch” and “trash,” and said “you

guys are a f--king joke.” The Employer also says that the Charging Party hit the wall

of the hallway while

was walking out. There is no evidence that the Charging

Party did any damage or that other employees were present when the Charging Party

was escorted out of the building.

ACTION

We conclude that the Charging Party was engaged in protected concerted activity

when soliciting

coworker’s opinion on how to deal with the

remarks made

by another coworker in the workplace.7 Nothing about the discussion caused the

Charging Party’s conduct to fall outside of the protection of the Act. Consequently, the

Employer violated Section 8(a)(1) by discharging the Charging Party for that

discussion. The Region should seek the full reinstatement and backpay remedy

because the Charging Party’s post-termination conduct did not make

unfit for

further service.

The Charging Party Engaged in Protected Concerted Activity Within

Section 7’s Mutual Aid or Protection Clause

Section 7 of the Act expressly protects employees’ right to “self-organization . . .

and to engage in other concerted activities for the purpose of collective bargaining or

other mutual aid or protection.”8 To fall within the ambit of this protection, an

employee’s conduct must be both “concerted” and for mutual aid or protection

Activity Within

Section 7’s Mutual Aid or Protection Clause

Section 7 of the Act expressly protects employees’ right to “self-organization . . .

and to engage in other concerted activities for the purpose of collective bargaining or

other mutual aid or protection.”8 To fall within the ambit of this protection, an

employee’s conduct must be both “concerted” and for mutual aid or protection. Board

precedent makes clear that these two elements are analytically distinct.9

8 29 U.S.C. § 157. See, e.g., NLRB v. City Disposal Systems Inc., 465 U.S. 822, 829

(1984).

9 Summit Regional Medical Center, 357 NLRB 1614, 1615 (2011); Meyers Industries,

Inc. (Meyers II), 281 NLRB 882, 884, 885 (1986), enfd. sub nom. Prill v. NLRB, 835

F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).

(b)(6), (b)(7)

(b)(6), (b)(7)(C)

(b)(6), (b)(7

(b)(6), (b)(7)(

(b)(6), (b)(7)

(b)(6), (b)(7)(

(b)(6), (b)(7)(C)

(b)(6), (b)(7)(

(b)(5)

Case 21-CA-211066

- 5 -

The Charging Party’s Conduct was Concerted

Conduct is concerted when it is “engaged in with or on the authority of other

employees,” or when an individual employee seeks “to initiate or to induce or to

prepare for group action” or to bring group complaints to management’s attention.10

An individual acts on the authority of other employees even if not directly told to take

a specific action if the concerns expressed by the individual employee to management

are a “logical outgrowth of the concerns expressed by the group.”11 Employees’

discussion of shared concerns about terms and conditions of employment can be

concerted, even when the discussion “in its inception involves only a speaker and a

listener, for such activity is an indispensable preliminary step to employee self-

organization.”12 When analyzing whether an employee has engaged in protected

concerted activity, the Board has found that the subjective motivations of the

individual employee are irrelevan

rms and conditions of employment can be

concerted, even when the discussion “in its inception involves only a speaker and a

listener, for such activity is an indispensable preliminary step to employee self-

organization.”12 When analyzing whether an employee has engaged in protected

concerted activity, the Board has found that the subjective motivations of the

individual employee are irrelevant because the standard is an objective one.13

Here, the Charging Party’s conduct was concerted when

spoke with

Coworker 2 concerning what to do about Coworker 1’s

rant. After the Charging

10 Meyers Industries (Meyers II), 281 NLRB at 885, 887.

11 Mike Yurosek & Son, Inc., 306 NLRB 1037, 1038-39 (1992) (finding four employees’

individual decisions to refuse overtime work were logical outgrowth of concerns they

expressed as a group over new scheduling policy), supplemented by 310 NLRB 831

(1993), enfd. 53 F.3d 261 (9th Cir. 1995).

12 Meyers Industries (Meyers II), 281 NLRB at 887, quoting Root-Carlin, Inc., 92

NLRB 1313, 1314 (1951). See also Holling Press, Inc., 343 NLRB 301, 302 (2004)

(finding that an employee was engaged in concerted activity to the extent that she

“exhorted another employee” to support her sexual harassment claim).

13 Circle K Corp., 305 NLRB 932, 933 (1991) (“Employees may act in a concerted

fashion for a variety of reasons—some altruistic, some selfish—but the standard

under the Act is an objective one.”), enforced mem., 989 F.2d 498 (6th Cir. 1993). See

also Fresh & Easy Neighborhood Market, Inc., 361 NLRB No. 12, slip op. at 4 (2014)

(“Under Section 7, both the concertedness element and the ‘mutual aid or protection’

element are analyzed under an objective standard. An employee’s subjective motive

for taking action is not relevant to whether that action was concerted.”). While Fresh

& Easy supports this proposition our analysis does not rely on the Board’s holding in

that case.

(b)(6), (b)(7)(

12, slip op. at 4 (2014)

(“Under Section 7, both the concertedness element and the ‘mutual aid or protection’

element are analyzed under an objective standard. An employee’s subjective motive

for taking action is not relevant to whether that action was concerted.”). While Fresh

& Easy supports this proposition our analysis does not rely on the Board’s holding in

that case.

(b)(6), (b)(7)(

(b)(6), (b)(7)(C)

(b)(5)

(b) (5)

Case 21-CA-211066

- 6 -

Party shared the upsetting interaction with Coworker 2, Coworker 2 also discussed

experience with Coworker 1 making a

hostile comment to

in the

workplace. The Charging Party specifically requested guidance from Coworker 2

about what action to take in that situation. After having established that both

employees had heard Coworker 1 make

comments in the workplace, Coworker 2

told the Charging Party to report the

rant to management.14 The Charging

Party then did exactly that, reporting the incident to both

Supervisor and the

15 Thus, in soliciting assistance from Coworker 2 with respect to how to

handle the

comments by Coworker 1, the Charging Party was engaged in

concerted activity.

The Charging Party’s Conduct was for Mutual Aid or Protection

Mutual aid or protection focuses on the goal of the concerted activity and whether

the employee or employees involved are seeking to “improve terms and conditions of

employment or otherwise improve their lot as employees.”16 As with the element of

14 Even if Coworker 2 did not tell the Charging Party to report this to management

(the Charging Party does not recall this aspect of the conversation), the conduct is

still concerted as a “preliminary step to self-organization.” See Meyers Industries

(Meyers II), 281 NLRB at 887. The employees were discussing a shared workplace

issue, Coworker 1’s

comments, and the Charging Party solicited advice from

Coworker 2 about how to handle the situation

report this to management

(the Charging Party does not recall this aspect of the conversation), the conduct is

still concerted as a “preliminary step to self-organization.” See Meyers Industries

(Meyers II), 281 NLRB at 887. The employees were discussing a shared workplace

issue, Coworker 1’s

comments, and the Charging Party solicited advice from

Coworker 2 about how to handle the situation. The two employees do not have to

agree to a fully-formed plan for the discussion to be considered concerted, as such a

standard would permit employers to pre-empt almost all protected concerted activity.

Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964) (“inasmuch

as almost any concerted activity for mutual aid and protection has to start with some

kind of communication between individuals, it would come very near to nullifying the

rights of organization and collective bargaining guaranteed by Section 7 of the Act if

such communications are denied protection because of lack of fruition.”).

15 The Employer’s contention that the Charging Party stated that the issue was not

work-related and, therefore, could not be concerted activity is immaterial. The

16 Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978). See also Fresh & Easy

Neighborhood Mkt., Inc., 361 NLRB No. 12, slip op. at 3.

(b)(6), (b)(7

(b)(6), (b)(7)(C)

(b)(6), (b)(7)(

(b)(6), (b)(7)(C)

(b)(6), (b)(7)

(b)(6), (b)(7)(C)

stated that the issue was not

work-related and, therefore, could not be concerted activity is immaterial. The

16 Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978). See also Fresh & Easy

Neighborhood Mkt., Inc., 361 NLRB No. 12, slip op. at 3.

(b)(6), (b)(7

(b)(6), (b)(7)(C)

(b)(6), (b)(7)(

(b)(6), (b)(7)(C)

(b)(6), (b)(7)

(b)(6), (b)(7)(C)

(b)(5)

Case 21-CA-211066

- 7 -

concert, the standard for determining whether the purpose of the conduct was for

mutual aid or protection is an objective standard.17 The Charging Party’s discussion

with Coworker 2 about the upsetting

comments made by Coworker 1 clearly

related to their terms and conditions of employment and their desire and right to be

free from

hostility in the workplace.18 The Board has repeatedly recognized

that

discriminatory terms and conditions of employment are a matter of

mutual concern for employees.19 Further, the Board has confirmed that employee

discussions about and efforts to draw management’s attention to a coworker who is

creating a difficult work environment involves conduct intended to improve a

condition of employment.20

17 See note 13, supra; see also Dreis & Krump Mfg. Co. v. NLRB, 544 F.2d 320, 328

n.10 (7th Cir. 1976) (“The motives of the participants are irrelevant in terms of

determining the scope of Section 7 protections; what is crucial is that the purpose of

the conduct relate to collective bargaining, working conditions and hours, or other

matters of ‘mutual aid or protection’ of employees.”).

18 Cf. Ellison Media Co., 344 NLRB 1112, 1113-14 (2005) (finding a discussion

between two employees about a sexually suggestive comment a supervisor may have

made to be protected concerted activity because it was “for the purpose of ‘mutual aid

or protection’ within the meaning of Section 7 of the Act, i.e., the two employees’

common interest in eliminating offensive remarks from their workplace.”)

. Ellison Media Co., 344 NLRB 1112, 1113-14 (2005) (finding a discussion

between two employees about a sexually suggestive comment a supervisor may have

made to be protected concerted activity because it was “for the purpose of ‘mutual aid

or protection’ within the meaning of Section 7 of the Act, i.e., the two employees’

common interest in eliminating offensive remarks from their workplace.”).

19 See, e.g., Churchill’s Restaurant, 276 NLRB 775, 777 (1985) (finding employee

statement protesting employer’s alleged discriminatory treatment of Hispanic

employees was protected activity); Vought Corp., 273 NLRB 1290, 1294 (1984)

(employee statement was protected because it concerned employer’s alleged racial

discrimination), enforced, 788 F.2d 1378 (8th Cir. 1986); Honeywell, Inc., 250 NLRB

160, 160–61, 161 n.6 (1980) (finding protected employee graffiti accusing the employer

of racially discriminatory promotional practices), enforced mem., 659 F.2d 1069 (3d

Cir. 1981). See also Dearborn Big Boy No. 3, 328 NLRB 705, 705, 710, 710 n.33 (1999)

(adopting ALJ finding that discussion about racial discrimination in hiring was

protected).

20 See Gatliff Coal Co., 301 NLRB 793, 798 (1991) (affirming the ALJ’s finding that an

employee’s concerted activity was protected because it concerned harassment by a

fellow employee including rumors of adultery), enforced, 953 F.2d 247 (6th Cir. 1992);

Leslie Metal Arts Co., 208 NLRB 323, 326 (1974) (employees’ walkout found protected

when it was in response to management’s failure to respond to an employee creating a

hostile environment), enforced, 509 F.2d 811, 814 (6th Cir. 1975); St. Rose Dominican

Hospitals, 360 NLRB 1130, 1132 (2014) (employee’s petition concerning a coworker’s

attitude in the workplace and its real or perceived effect on working conditions was

protected concerted activity and not merely personal griping).

(b)(6), (b)(7)(C)

to an employee creating a

hostile environment), enforced, 509 F.2d 811, 814 (6th Cir. 1975); St. Rose Dominican

Hospitals, 360 NLRB 1130, 1132 (2014) (employee’s petition concerning a coworker’s

attitude in the workplace and its real or perceived effect on working conditions was

protected concerted activity and not merely personal griping).

(b)(6), (b)(7)(C)

Case 21-CA-211066

- 8 -

Coworker 1’s

rant to the Charging Party was not an isolated instance of

Coworker 1’s

at work. Coworker 2 had also been subjected to a

offensive comment from Coworker 1.21 After the Charging Party discussed these

incidents with Coworker 2,

told the Senior VP about the comment that Coworker

1 made to Coworker 2, in addition to the

rant

witnessed. The

Employer considers it important to have a workplace free from

hostility, and

the

expressed as much when

told the Charging Party that Coworker 1’s

identity was important because commentary like

was not acceptable in the

workplace. The fact that the Employer claims that the Charging Party self-

characterized the incident as not a workplace issue does not make

comments in

the workplace any less of a workplace concern.22 Therefore, the purpose of the

Charging Party’s conduct, both in discussing the situation with

coworker and in

bringing the concern to management, was for mutual aid or protection.23

21 This fact distinguishes this case from the sexual harassment complaints at issue in

Holling Press and Fresh & Easy. In Holling Press, the Board found that an

individual’s sexual harassment complaint, while concerted, was not for mutual aid or

protection because the complaint was individual in nature and there was “no evidence

that any other employee had similar problems—real or perceived—with a coworker or

supervisor.” Id. at 302

the sexual harassment complaints at issue in

Holling Press and Fresh & Easy. In Holling Press, the Board found that an

individual’s sexual harassment complaint, while concerted, was not for mutual aid or

protection because the complaint was individual in nature and there was “no evidence

that any other employee had similar problems—real or perceived—with a coworker or

supervisor.” Id. at 302. The Board majority in Fresh & Easy overturned Holling Press

on this point, deciding that individual complaints about sexual harassment in the

workplace are for mutual aid and protection. 361 NLRB No. 12, slip op. at 10. In his

dissent, Member Miscimarra took issue with that aspect of the majority opinion, in

part, because with an individual complaint of sexual harassment, the “bare possibility

that the second employee may one day suffer similar treatment, and may herself seek

help, is far too speculative a basis on which to rest a finding of mutual aid or

protection.” Id. at 16. It is unnecessary to weigh in on that issue here as there is clear

evidence that more than one employee had a specific, shared concern (Coworker 1’s

comments at work), and that the Charging Party’s actions (reporting to the

Employer the

rant Coworker 1 made to

and that Coworker 1 had made a

prior

offensive comment to Coworker 2) reflected that fact. The Charging

Party in no way threatened or bullied Coworker 2 into supporting

, as was an

issue in both Fresh & Easy and Holling Press. Rather, Coworker 2 admittedly

encouraged the Charging Party to report the

rant to management, just like

Coworker 2 had previously done when Coworker 1 made the

comment to

22 See, e.g., Dreis & Krump Mfg. Co. v. NLRB, 544 F.2d at 328 n.10.

23 Although the Employer asserts that it terminated the Charging Party because

conduct violated the final warning, that is not a valid defense to the Section 8(a)(1)

discharge allegation because the conduct that the Employer says violated the warning

(b)(6), (b)(7)(C)

en Coworker 1 made the

comment to

22 See, e.g., Dreis & Krump Mfg. Co. v. NLRB, 544 F.2d at 328 n.10.

23 Although the Employer asserts that it terminated the Charging Party because

conduct violated the final warning, that is not a valid defense to the Section 8(a)(1)

discharge allegation because the conduct that the Employer says violated the warning

(b)(6), (b)(7)(C)

(b)(6), (b)(7)(

(b)(6), (b)(7)(C)

(b)(6), (b)(

(b)(6), (b)(7)(C)

(b)(6), (b)(7)

(b)(6), (b)(7)(C)

(b)(6), (b)(7)(

(b)(6), (b)(7)(C)

(b)(6), (b)(7)(

(b)(6), (b)(7)(C)

(b)(6), (b)(7)(C

(b)(6), (b)(7

Case 21-CA-211066

- 9 -

The Charging Party’s Conduct Did Not Fall Outside the Protection

of the Act

The evidence does not support the Employer’s claim that the Charging Party’s

conduct fell outside the protection of the Act and, therefore, she was lawfully

terminated for repeating Coworker 1’s comments. The Board has held that certain

egregious conduct, which would otherwise be protected but significantly disrupts work

processes or creates a hostile work environment, is not protected concerted activity.

For example, in Honda of America, the Board found that the company lawfully

terminated an employee for publishing a newsletter that included an offensive

comment directed at a coworker and other offensive language, about which numerous

employees had complained to management.24 In that same light, in Google, Inc., the

Division of Advice recently concluded that the company lawfully terminated an

employee for promoting gender stereotypes and making claims about biological

differences between the sexes in a memorandum tha

circulated among

employees.25 In that case, the company received many complaints about the

stereotypes promoted by the employee in

memorandum, including from two

applicants who withdrew their applications from the company after learning about

lawfully terminated an

employee for promoting gender stereotypes and making claims about biological

differences between the sexes in a memorandum tha

circulated among

employees.25 In that case, the company received many complaints about the

stereotypes promoted by the employee in

memorandum, including from two

applicants who withdrew their applications from the company after learning about

the employee’s statements.

Unlike those situations, the Charging Party was not promoting any of

own

views, much less personally offensive views.

discussion of Coworker 1’s rant and

solicitation of advice regarding the comments was not directing

comments at

other employees. The Charging Party was clearly upset by Coworker 1’s statements

and in no way condoned them, which was the reaso

as asking Coworker 2

about how to deal with the comments in the first place. The Charging Party could not

have engaged in protected concerted activity relating to the incident with Coworker 1

without discussing the incident and the comments themselves. There is also no

evidence that any employees complained to management about the Charging Party’s

conduct or were offended by

onduct. Rather, Coworker 2 was supportive of the

Charging Party’s efforts to deal with and address Coworker 1’s comments. Thus, the

was protected concerted activity. Moreover, contrary to the Employer’s argument,

where the conduct for which an employer claims to have terminated an employee is

protected concerted activity, the termination violates Section 8(a)(1) and no motive

analysis under Wright Line is necessary. See e.g., Neff-Perkins Co., 315 NLRB 1229,

1229 n.2 (1994); Circle K Corp., 305 NLRB at 934.

24 334 NLRB 746, 749 (2001).

25 Google, Inc., Case 32-CA-205351, Advice Memorandum dated January 16, 2018.

(b)(6), (b)(7)

(b)(6), (b)(7)(C

(b)(6), (b)(7)(C)

ion violates Section 8(a)(1) and no motive

analysis under Wright Line is necessary. See e.g., Neff-Perkins Co., 315 NLRB 1229,

1229 n.2 (1994); Circle K Corp., 305 NLRB at 934.

24 334 NLRB 746, 749 (2001).

25 Google, Inc., Case 32-CA-205351, Advice Memorandum dated January 16, 2018.

(b)(6), (b)(7)

(b)(6), (b)(7)(C

(b)(6), (b)(7)(C)

Case 21-CA-211066

- 10 -

Charging Party’s conduct of repeating Coworker 1’s comments while soliciting advice

about how to deal with such comments is not the type of egregious conduct that the

Board finds is outside of the protection of the Act.

II. The Charging Party’s Post-Termination Conduct Did Not Make

Unfit for Further Service

There is also no merit to the Employer’s claim that it would have terminated the

Charging Party in any case for

post-termination conduct, or in other words, that

the Charging Party is not entitled to reinstatement and backpay remedies under the

Act. The Board applies a different standard to post-termination conduct than the

conduct for which an employee was terminated, because of the instigating aspect of an

unlawful termination.26 The Board “looks at the nature of the misconduct and denies

reinstatement in those flagrant cases ‘in which the misconduct is violent or of such

character as to render the employee unfit for further services.’”27 In doing this

analysis, the Board “takes into account whether the misconduct was an ‘emotional

reaction’ to the employer’s own unlawful discrimination against the employee.”28 The

Board does this because “employers who break the law should not be permitted to

escape fully remedying the effects of their unlawful actions based on the victim’s

natural human reactions to the unlawful acts.”29

26 See Alto-Shaam, Inc., 307 NLRB 1466, 1467 (1992) (distinguishing the standard for

reinstatement of an employee accused of strike misconduct and the standard f

o break the law should not be permitted to

escape fully remedying the effects of their unlawful actions based on the victim’s

natural human reactions to the unlawful acts.”29

26 See Alto-Shaam, Inc., 307 NLRB 1466, 1467 (1992) (distinguishing the standard for

reinstatement of an employee accused of strike misconduct and the standard for

evaluating misconduct by the employee after he has been discriminatorily

discharged), enfd. 996 F.2d 1219 (7th Cir. 1993), cert. denied 510 U.S. 965 (1993).

27 Family Nursing Home, 295 NLRB 923, 923 n.2 (1989), citing C-Town, 281 NLRB

458, 458 (1986).

28 Alto-Shaam, 307 NLRB at 1467, citing Blue Jeans Corp., 170 NLRB 1425 (1968).

See also Trustees of Boston University, 224 NLRB 1385, 1409 (1976) (“evaluation of

postdischarge employee misconduct requires sympathetic recognition of the fact that

it is wholly natural for an employee to react with some vehemence to an unlawful

discharge”), enfd. 548 F.2d 391 (1st Cir. 1977); Precision Window Mfg., 303 NLRB

946, 946 (1991) (where the Board found a threat to kill the supervisor to be

reactionary and part of the unlawfully discharged employee’s emotional ramblings),

enforcement denied 963 F.2d 1105 (8th Cir. 1992).

29 Hawaii Tribune Herald, 356 NLRB 661, 662 (2011) (holding that the postdischarge

statements of an employee disparaging his former employer did not bar his

reinstatement and backpay under the “unfit for further service” test), enfd. 677 F.3d

1241 (D.C. Cir. 2012).

(b)(6), (b)(7)(C

e unlawfully discharged employee’s emotional ramblings),

enforcement denied 963 F.2d 1105 (8th Cir. 1992).

29 Hawaii Tribune Herald, 356 NLRB 661, 662 (2011) (holding that the postdischarge

statements of an employee disparaging his former employer did not bar his

reinstatement and backpay under the “unfit for further service” test), enfd. 677 F.3d

1241 (D.C. Cir. 2012).

(b)(6), (b)(7)(C

(b)(6), (b)(7)

Case 21-CA-211066

- 11 -

Applying that test, the Board has determined that outrageous and violent

conduct such as the physical assault of a supervisor after an unlawful discharge bars

reinstatement of a discriminatee.30 A substantial threat of physical harm to a

coworker three days after the unlawful termination is also sufficient to forfeit

reinstatement and backpay.31 However, the Board will not bar a full remedy for

conduct that does not rise to that level, e.g., an employee calling his supervisor a

“bald-headed a--hole” after being terminated for engaging in protected concerted

activity,32 or an employee using the “F word” with her boss and calling a coworker a

“stupid, f--king bitch” in front of customers after being unlawfully terminated.33

The Charging Party’s emotional reaction to being unlawfully terminated does not

prevent

from being accorded the full remedies of the Act. Although

used

inappropriate and harsh language (including “bitch,” “trash,” and “bullshit”),

conduct did not rise to the level of misconduct precluding reinstatement.34 The

Charging Party did not engage in violence towards any of the

members of

management who were present for

discharge nor did

threaten any of those

managers. There is no evidence that other employees were present during the

Charging Party’s outburst or that

disturbed the workplace in any way. After the

Charging Party left the Employer’s facility shortly after being terminated,

engaged in no additional improper conduct

in violence towards any of the

members of

management who were present for

discharge nor did

threaten any of those

managers. There is no evidence that other employees were present during the

Charging Party’s outburst or that

disturbed the workplace in any way. After the

Charging Party left the Employer’s facility shortly after being terminated,

engaged in no additional improper conduct. Therefore, the Charging Party’s post-

termination conduct does not render

unfit for further employment or bar

reinstatement and backpay.

Accordingly, the Region should issue a complaint, absent settlement, alleging

that the Employer unlawfully terminated the Charging Party for engaging in

protected concerted activity. Additionally, the Region should seek reinstatement and

backpay for the Charging Party as part of the remedy.

30 Family Nursing Home, 295 NLRB at 923, n.2.

31 Alto-Shaam, 307 NLRB at 1467 (the Board noted that the threat could not be

considered an emotional reaction since three days had passed since the unlawful

termination).

32 Systems with Reliability, Inc., 322 NLRB 757, 760-61 (1996).

33 Dearborn Big Boy No. 3, Inc., 328 NLRB at 709, 712. The Board adopted the ALJ’s

findings which noted that such language had previously been tolerated in the

workplace.

34 See e.g., Systems with Reliability, Inc., 322 NLRB at 760; Dearborn Big Boy No. 3,

Inc., 328 NLRB at 709.

(b)(6), (b)(7

(b)(6), (b)(7)

(b)(6), (b)(7

(b)(6), (b)(7)(C)

(b)(6), (b)(7)(

(b)(6), (b)(7

(b)(6), (b)(7)(

Case 21-CA-211066

- 12 -

/s/

J.L.S.

ADV.21-CA-211066.Response.DunnEdwardsCorp

(b)(6), (b)(7)(C)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.