Board affirms ALJ in Staffing Network Holdings

In Staffing Network Holdings, (13-CA-105031; 362 NLRB No. 12), The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by twice threatening employees with termination because of their protected concerted activity and by discharging an employee for conduct that occurred during the course of her protected concerted activity. The majority noted, contrary to the judge, that the fourth factor of the Atlantic Steel Co., 245 NLRB 814 (1979), test—whether the employee’s outburst was provoked by the employer’s unfair labor practice—weighed in favor of protection because the employee’s outburst was provoked by the Respondent’s unlawful threats of termination. Member Johnson agreed with his colleagues’ adoption of the judge’s findings of violations. He added that he would have solely relied on a particular statement made by the Respondent in finding the unlawful threat of termination. Member Johnson also clarified which conduct he regarded as constituting the employee outburst in the judge’s Atlantic Steel analysis, noted that he would find that the nature of the employee’s outburst weighed weakly toward a loss of protection, and stated that he would not disturb the judge’s finding that the provocation factor of the Atlantic Steel test did not weigh in favor of protection. Charge filed by an individual. Administrative Law Judge Melissa M. Olivero issued her decision on July 17, 2014. Chairman Pearce and Members Hirozawa and Johnson participated.