Felix Industries

National Labor Relations Board - Board Decisions

Jun 3, 2003

339 N.L.R.B. 195 (N.L.R.B. 2003)

FELIX INDUSTRIES 195
Felix Industries, Inc. and Salvatore Yonta. Case 2–
CA–29785
June 3, 2003
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On May 17, 2000, the National Labor Relations Board
issued its Decision and Order in this proceeding,1 finding
that the Respondent violated Section 8(a)(1) of the Act
by discharging employee Salvatore Yonta for engaging
in protected concerted activity in raising to his supervisor
the issue of his alleged right to night differential pay un-
der the applicable collective-bargaining agreement. The
Board found that Yonta’s use of obscenities during that
conversation with his supervisor was not so opprobrious
as to lose the protection of the Act.2
Subsequently, the Respondent filed a petition for re-
view of the Board’s Order with the United States Court
of Appeals for the District of Columbia Circuit and the
Board filed a cross-application for enforcement. On June
12, 2001, the court issued its decision granting the Re-
spondent’s petition for review, denying enforcement of
the Board’s Order, and remanding the case to the Board
for further proceedings consistent with its opinion.3
By letter dated September 19, 2001, the Board notified
the parties that it had accepted the remand and invited the
parties to file statements of position. Thereafter, the Re-
spondent and the General Counsel filed statements of
position.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the court’s remand and the parties’ statements
of position, and finds, as explained below, that Yonta did
not lose the protection of the Act and, consequently, that
his discharge was unlawful.
BACKGROUND
The relevant facts are as follows. In September 1996,4
employee Yonta was reassigned from his day-shift
schedule to work the night shift. The applicable collec-
tive-bargaining agreement provided for a night-shift dif-
ferential payment, whereby an employee working that
shift was paid 9 hours of pay for 8 hours of work. When
Yonta received his first paycheck for working the night
shift, he noticed that it did not include the contractual
night differential pay.

1 331 NLRB 144 (2000).
2 Id. at 146.
3 251 F.3d 1051 (D.C. Cir. 2001).
4 All dates are in 1996 unless stated otherwise.
In early October, after an inquiry by a shop steward
failed to provide an answer as to why Yonta was not re-
ceiving the night-shift differential pay, Yonta telephoned
Supervisor Felix Petrillo about the matter. Petrillo, who
was about 25 years old at the time of these events, was
the son of the Respondent’s president and a supervisor of
the Respondent’s field operations. Yonta inquired about
why he was not receiving the night differential payment.
Petrillo acknowledged that he had spoken to the shop
steward about this issue, but he was not sure whether
Yonta was entitled to the night differential. Petrillo
added that Yonta would get every penny to which he was
entitled.
The conversation did not end there, however. It be-
came increasingly hostile, as Petrillo told Yonta that he
could not believe Yonta was making an issue of the night
differential. Adding to the hostility, Petrillo told Yonta
that he was tired of carrying him. Yonta, who was about
41 years old at the time, responded, “You’re just a fuck-
ing kid. I don’t have to listen to a fucking kid. Things
were a lot different before you were here.” Petrillo asked
Yonta what he had just called him, and Yonta repeated
“fucking kid.” The Respondent terminated Yonta later
that day.
The Board’s original decision found that Yonta did not
lose the protection of the Act by his use of profane lan-
guage in his conversation with Petrillo, and thus his dis-
charge violated Section 8(a)(1) of the Act. The Board
applied the factors set forth in Atlantic Steel Co., 245
NLRB 814 (1979), that are considered in determining
whether an employee who is otherwise engaged in pro-
tected activity loses the protection of the Act by oppro-
brious conduct. Those four factors are (1) the place of
the discussion; (2) the subject matter of the discussion;
(3) the nature of the employee’s outburst; and (4)
whether the outburst was, in any way, provoked by an
employer’s unfair labor practice. 245 NLRB at 816–817.
The Board found that none of the factors weighed in fa-
vor of Yonta losing the protection of the Act.
The Board first found that nothing about the place of
discussion, i.e., a private conversation over the tele-
phone, weighed in favor of Yonta losing the protection of
the Act. Weighing the next factor, the subject matter of
the discussion, the Board found that the discussion con-
cerned Yonta’s rights under the collective-bargaining
agreement, and thus constituted protected concerted ac-
tivity. With regard to the third factor, the nature of the
outburst, the Board found that it did not weigh in favor of
losing the protection of the Act because Yonta’s conduct
consisted of a “brief, verbal outburst of profane lan-
guage, unaccompanied by any threat or physical gestures
or contact.” 331 NLRB at 145. Finally, with regard to
339 NLRB No. 32
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 196
whether the conduct was provoked by an unfair labor
practice, the Board found that Yonta’s remarks were pro-
voked by “hostile responses to his protected remarks,
including the implicit threat that he could lose his job for
engaging in protected activity.” Id.5
The D.C. Circuit reversed the Board’s finding with re-
spect to the third Atlantic Steel factor, i.e., the nature of
the outburst. Specifically, the court found that Yonta
denounced his supervisor in “obscene, personally-
denigrating, [and] insubordinate terms,” and conse-
quently the nature of his outburst counts against accord-
ing him the protection of the Act. 251 F.3d at 1055. The
court agreed with the Board, however, that none of the
other factors counted against Yonta losing the protection
of the Act.6 Accordingly, the court remanded the case to
the Board to determine whether one factor, the nature of
the outburst, sufficiently outweighs the other factors so
as to tip the balance in favor of Yonta losing the protec-
tion of the Act. Id.
Analysis
Having accepted the court’s remand, we are bound by
the law of the case established in the court’s opinion.
Thus, we accept as the law of the case that the third At-
lantic Steel factor, the nature of Yonta’s outburst, weighs
in favor of Yonta losing the protection of the Act. The
court has left open for further consideration the question
of whether this factor, by itself, outweighs the other At-
lantic Steel factors that do not weigh in favor of Yonta
losing the protection of the Act. After careful considera-
tion in light of the court’s instructions on remand, we
find that although the nature of Yonta’s outburst must be
given considerable weight towards losing the Act’s pro-
tection, this one factor is insufficient to overcome the
other factors weighing against Yonta losing the Act’s
protection.
As noted above, the court has agreed with the Board’s
finding that none of the three other Atlantic Steel factors
weigh in favor of Yonta losing the protection of the Act.7
In fact, the court’s decision finds that two factors, the
subject matter of the discussion and the provocation of

5 The Board added that although the General Counsel did not allege
that Petrillo’s comments were violative of the Act, the Board was free,
under Atlantic Steel, to consider conduct that would have been found to
be an unfair labor practice had it been so alleged.
6 The court read the Board’s decision as finding that the first factor,
the place of the discussion, weighed neither in favor of protection nor
against it. The court found that the other two factors, the subject matter
of the discussion and the provocation by an unfair labor practice, were
properly weighed in favor of the Act’s protection.
7 We accept, as part of its remand, the court’s finding that the
Board’s original decision implicitly found that the first Atlantic Steel
factor, the place of the discussion, weighs neither in favor of nor
against Yonta losing the protection of the Act.
the outburst, weigh in favor of the Act’s protection. A
careful examination of these factors reveals that they
clearly outweigh the one factor weighing in favor of
Yonta losing the Act’s protection, the nature of the out-
burst.
With respect to the subject matter of the discussion, we
find it very significant that the subject concerned Yonta’s
rights under the contract, and that Yonta was engaging in
protected activity by initiating this discussion with
Petrillo. Indeed, Petrillo’s response was not a mere de-
nial of Yonta’s request for the contractual payments. If
that had been the entire response, this would be a much
different case. Rather, Petrillo expressed astonishment
and anger that Yonta was making an “issue” of this, and
then increased the level of his hostility with his statement
that he was tired of “carrying” Yonta, a comment that
effectively put Yonta on notice that he could be fired for
having made an “issue” of his rights under the contract.
Thus, at this point, the subject matter of the discussion
concerned not only Yonta’s rights under the collective-
bargaining agreement, but also Yonta’s pursuit of those
rights.
With respect to the nature of the outburst, we accept
the court’s determination that Yonta’s outburst was “ob-
scene,” “personally-denigrating” and “insubordinate,”
and that this factor weighs towards losing the Act’s pro-
tection. However, we are also mindful of the court’s
instruction to determine whether this outburst is suffi-
cient to lose the protection of the Act in these circum-
stances. To do so requires us to consider the fourth At-
lantic Steel factor, the provocation by unfair labor prac-
tices. This factor provides the context in which Yonta’s
outburst occurred, i.e., during a protected conversation in
which Yonta was provoked by Petrillo’s overt hostility
towards Yonta’s protected conduct, including a threat of
termination for engaging in protected activity. We have
determined that substantial weight must be given to the
circumstances that provoked Yonta’s outburst. It is clear
that but for Petrillo’s expression of hostility towards
Yonta’s protected conduct, which included the threat of
termination for having engaged in this protected conduct,
Yonta’s outburst would not have occurred. Prior to this
outburst triggered by Petrillo’s provocations, there is no
basis to find that Yonta engaged in any inappropriate
conduct in discussing the merits of his wage claim. Ac-
cordingly, when considered in this context, the nature of
Yonta’s outburst does not outweigh the fact that Yonta
was provoked by Petrillo’s extremely hostile remarks
FELIX INDUSTRIES 197
about the protected activity in which Yonta was currently
engaged.8
In arguing that Yonta lost the protection of the Act, our
dissenting colleague contends that Petrillo’s comments
were not so provocative as to cause Yonta to utter the
profane comments. Our colleague relies in particular on
the fact that Petrillo asked Yonta what he had just called
him, and that Yonta responded by repeating “fucking
kid.” In our view, our colleague places too much signifi-
cance on this last part of the conversation and fails to
recognize that Petrillo’s comments were increasingly
hostile and provocative. First, Petrillo questioned the
validity of Yonta’s claim. He next expressed outrage at
the fact that Yonta was pursuing a contractual right.
Petrillo followed these comments with the statement that
he was “tired of carrying him,” effectively a threat to
discharge Yonta for engaging in protected activity. That
statement triggered Yonta’s outburst. The record con-
tains no evidence that Yonta had ever been informed
before this conversation that he was being “carried” or
that his work was deficient in any manner. Accordingly,
this sudden pronouncement by Petrillo, bearing on
Yonta’s worth as an employee, was not only a threat of
discharge, but was “personally-denigrating,” to Yonta.
And, rather than taking any steps to calm the situation,
Petrillo exacerbated the situation by immediately daring
Yonta, in the heat of his anger, to repeat his profane
comment. Having considered the full context of
Petrillo’s comments, we cannot agree with our colleague
that Petrillo did not make highly provocative remarks in
this conversation.
In sum, although the nature of Yonta’s outburst weighs
in favor of losing the protection of the Act, it does not
outweigh the factors favoring the protections accorded to
him under the Act. Accordingly, we find that Yonta did
not lose the protection of the Act during his conversation
with Petrillo, and that his discharge violated Section
8(a)(1) as alleged.
ORDER
The National Labor Relations Board reaffirms the
Board’s original Order reported at 331 NLRB 144
(2000), and orders that the Respondent, Felix Industries,
Inc., Lincolndale, New York, its officers, agents, succes-

d

8 In finding that the nature of Yonta’s outburst outweighs the Atlan-
tic Steel factors that lean in Yonta’s favor, the dissent relies—in addi-
tion to Yonta’s profane remarks—on Yonta’s statement that he did not
have to listen to Petrillo. Contrary to the dissent, we find, in view of
Petrillo’s provocative remarks and the fact that the exchange occurred
in the heat of a dispute over compliance with a collective-bargaining
agreement in which tempers can understandably flare, that this state-
ment by Yonta—standing alone—is only mildly insubordinate. In any
event, it does not raise the nature of Yonta’s outburst to a level that
outweighs the other factors leaning in Yonta’s favor.
sors, and assigns, shall take the action set forth in the
Order.

CHAIRMAN BATTISTA, dissenting.
Contrary to my colleagues, I find that employee
Salvatore Yonta lost the protection of the Act based on
his obscene outburst at his supervisor during their tele-
phone conversation. Accordingly, I find that the Re-
spondent’s discharge of Yonta did not violate Section
8(a)(1) of the Act.
The facts are not in dispute. In October 1996, Yonta
telephoned Supervisor Felix Petrillo with a question
about whether he was entitled to night differential pay
under the collective-bargaining agreement. Petrillo, who
supervised 250 of the Respondent’s employees, ex-
plained that he was not sure whether Yonta was entitled
to the extra pay, but assured Yonta that he would get
every penny to which he was entitled. As the conversa-
tion ensued, Petrillo expressed his surprise that Yonta
had made an issue of this, because the Respondent had
never cheated any of its employees. He also told Yonta
that he was tired of “carrying” him. At this point, Yonta
engaged in an outburst laced with profanity. He called
his supervisor a “fucking kid.” In fact, he uttered that
expression three times.
The D.C. Circuit found that Yonta’s outburst was “ob-
scene,” “personally degrading,” and “insubordinate.”
Applying the Atlantic Steel1 test, the court held that the
Board erred in not finding that one of the factors to be
considered, the nature of the outburst, weighed in favor
of Yonta losing the protection of the Act. The court also
accepted the Board’s decision insofar as it found that two
factors, the subject matter of the conversation and the
provocation by unfair labor practices, weighed in favor
of the Act’s protection. Left for consideration on remand
is the question of whether the weight given to Yonta’s
outburst is greater than that given to the other two fac-
tors.2
In my view, Yonta’s outburst constitutes outrageous
conduct, and outweighs the other factors.
Plainly, Yonta’s outburst consisted of nothing short of
egregious misconduct. His use of profanity here was no
slip of the tongue; he called his supervisor a “fucking
kid” three times. Significantly, and to his credit, Petrillo
gave Yonta the opportunity to back away from these
outrageous comments after the second time Yonta use
1 245 NLRB 814 (1979).
2 A fourth factor (place of conversation) was regarded as militating
neither in favor of, nor against, protection.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 198
this expression. He asked Yonta what he had just called
him. Rather than backing off, however, Yonta took this
opportunity to continue his outrageous behavior, and
once again called Petrillo a “fucking kid.”
Further, Yonta’s outburst amounted to a substantial at-
tack on the authority of a high-ranking official, viz. the
supervisor of the 250 employees in Respondent’s field
operation. In addition, Yonta was insubordinate. He
said that he did not have to listen to Petrillo. Clearly, a
high-ranking supervisor need not tolerate such abusive,
obscene, and insubordinate conduct.
With respect to the two Atlantic Steel factors that have
been found to weigh in Yonta’s favor, any such weight is
insufficient to overcome the substantial weight attributed
to the nature of Yonta’s outburst. Thus, with respect to
the subject matter of the conversation, I note that in re-
sponse to Yonta’s inquiry, Petrillo did not reject Yonta’s
claim for the night differential pay. Rather, Petrillo
merely said that he did not yet have a definitive answer
to Yonta’s question, and he attempted to alleviate
Yonta’s concern by assuring him that he would get every
penny to which he was entitled. In these circumstances,
the weight of this factor is not as considerable as it would
be in a genuine labor-management dispute, where the
Board has recognized that tempers can flare.3
With respect to the factor regarding the provocation by
an unfair labor practice, I find that this factor carries little
weight as well. I recognize that the court affirmed the
Board’s earlier finding that Petrillo’s remark about “car-
rying” Yonta amounted to a threat of termination. It was,
however, an implicit threat at best. In fact, the General
Counsel did not even allege that the statement violated
Section 8(a)(1).
My colleagues assert that Petrillo’s remark was “per-
sonally-denigrating” to Yonta. Of course, the court used
that phrase to refer to Yonta’s remarks to Petrillo, not the
other way around. In addition, if, as my colleagues sug-
gest, Petrillo’s remark was “personally

3 See, for example, Thor Power Tool Co., 148 NLRB 1379 (1964),
enfd. 351 F.2d 584 (7th Cir. 1965); Firch Baking Co., 232 NLRB 772
(1977).
degrading” because it responded to Yonta’s “worth as an
employee,” it was a reference to Yonta’s work perform-
ance and not to any protected activity.
The other remark at issue, Petrillo’s comment that he
could not believe that Yonta was making an issue of this,
was simply reflective of Petrillo’s stated belief that he
had never cheated anyone and would not do so here. The
remark was hardly provocative.
My colleagues have nevertheless attached substantial
weight to Petrillo’s comments. They contend that, but
for Petrillo’s comments, Yonta’s outburst would have
never occurred. Their argument fails to recognize that
even if Yonta was angered by Petrillo’s comments, those
comments were neither so threatening nor so provocative
as to anger Yonta to the point where he would lose all
control, as he did here.
Further, it is highly significant that the third time
Yonta uttered the phrase “fucking kid,” it was not in re-
sponse to Petrillo’s comments. Rather, it came in re-
sponse to Petrillo’s question as to what Yonta had just
said to him. Certainly, that question by Petrillo cannot
be construed as a threat of any kind. If anything, it pro-
vided Yonta with an opportunity to back away from or
retract his obscene comments, and Yonta failed to take
advantage of this opportunity. Instead, he seized this
opportunity to continue uttering obscene comments at his
supervisor. Consequently, I find that the provocation
here was minimal at best and did not cause Yonta’s reac-
tion.
In sum, an analysis of the Atlantic Steel factors shows
that Yonta engaged in outrageous misconduct and that
the nature of his outburst weighs heavily towards Yonta
losing the protection of the Act. Although two Atlantic
Steel factors—the subject matter of the discussion and
the provocation by unfair labor practices—have been
found to weigh in favor of the Act’s protection, they are
insufficient to overcome the substantial weight given to
Yonta’s outburst. Accordingly, I find that a proper bal-
ance of these factors demonstrates that Yonta lost the
protection of the Act by engaging in outrageous conduct.
Consequently, his discharge did not violate Section
8(a)(1) of the Act.