251 F.3d 1051 (D.C. Cir. 2001)
Felix Industries, Inc., Petitionerv.National Labor Relations Board, Respondent
No. 00-1239
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 6, 2001Decided June 12, 2001

On Petition for Review and Cross-Application for Enforcement of an Order of the  National Labor Relations Board
Peter D. Stergios argued the cause for petitioner.  With  him on the brief was Elliot Jay Mandel.
Julie F. Marcus, Attorney, National Labor Relations  Board, argued the cause for respondent.  With her on the  brief were Leonard R. Page, General Counsel, John H.  Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Margaret A. Gaines,  Supervisory Attorney.
Before: Ginsburg, Randolph, and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge:


1
An employee telephoned his supervisor to press his right under a collective bargaining  agreement to receive premium pay for working night shifts. In the ensuing conversation the employee thrice directed  obscenities at his supervisor, for which he was promptly fired. The National Labor Relations Board decided that the firing  violated           8(a)(1) of the National Labor Relations Act,           29  U.S.C. 158(a)(1), because the employee's conduct remained  protected by           7 of that Act, 29 U.S.C.           157, notwithstanding his abusive speech.  The employer now petitions for  review, and the Board applies for enforcement, of that decision.


2
This case turns upon the four factors the Board considers  pursuant to Atlantic Steel Co., 245 NLRB 814 (1979), to  determine "whether an employee engaged in protected activity loses the protection of the Act by opprobrious conduct:  (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."  Felix Indus., Inc., 331  NLRB No. 12, slip op. at 1 (2000).  The Board's analysis of  the third factor in this case was arbitrary and capricious in  that it departed from its own precedent and that of this court. We therefore grant the petition for review and remand this  case for the Board to reweigh that factor as part of its fourfactor balancing test.

I. Background

3
Felix Industries, Inc. is a general contractor specializing in  the construction of highways and utilities.  Salvatore Yonta, a  dockbuilder on the day shift since 1989, was assigned to the  night shift in the second week of September 1996.  Yonta's immediate supervisor at the time was Felix Petrillo, whose  father was the president of the Company.


4
Under the collective bargaining agreement then in place  Yonta was entitled to a "night differential":  he was to be  paid for nine hours of work every time he worked an eighthour shift during specified hours.  Upon joining the night  shift Yonta asked his shop steward about the night differential.  The shop steward then consulted Petrillo, who told the  steward to consult the union;  the steward thereafter told  Yonta he would receive the differential.  When Yonta did not  receive the differential with his next pay check (for the period  ending September 15) he contacted the superintendent of  steam operations at his site, who told him to contact Petrillo. After getting his checks for the periods ending September 22  and 29, again without the differential, Yonta contacted the  union's business agent, who confirmed that Yonta was entitled to the extra pay.


5
On the morning of October 7 -three weeks after the issue  was first brought to Petrillo's attention -Yonta, who was at  home, called Petrillo at his office to ask about the differential. Petrillo assured Yonta he would get "every penny" to which  he was entitled.  He also told Yonta he was tired of "carrying" him.  Yonta, who was 42 years old, retorted that Petrillo,  who was 25, was "just a f--king kid," and added, "I don't  have to listen to a f--king kid."  When Petrillo asked what  Yonta had just called him, Yonta obligingly confirmed it was  "a f--king kid."  Petrillo told Yonta he would get a check  with all his hours, and Yonta was fired that same day.


6
An Administrative Law Judge, applying the balancing test  of Atlantic Steel, held that although "the subject matter of  the [Yonta-Petrillo] discussion was protected," Yonta "had  lost the protection" of the Act upon directing obscenities at  his supervisor, Petrillo.  331 NLRB No. 12, slip op. at 8.  The  Board, with one Member dissenting, disagreed with the ALJ's  application of Atlantic Steel's four factors.  Deeming Yonta's  conduct protected under           7, the Board majority held that  Felix had violated           8(a)(1) by firing Yonta, and ordered  Felix to reinstate him with backpay.  Id. at 1-3.

II. Analysis

7
In Atlantic Steel Co. the Board established that


8
even an employee who is engaged in concerted activity can, by opprobrious conduct, lose the protection of the Act.  The decision as to whether the employee has crossed that line depends on several factors:  (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.


9
245 NLRB at 816.  Felix nonetheless suggests initially that  Yonta's conduct is categorically unprotected, but it stops  short of arguing that the four-factored balancing test of  Atlantic Steel is itself unlawful.  Instead, Felix argues that  the Board unreasonably applied that test to the facts of this  case.

A. Place of the discussion

10
In holding that the place of Yonta's discussion with Petrillo  did not weigh against protecting Yonta's conduct under the  Act, the Board first opined that a telephone conversation is  "no more or less likely a situs [than the typical workplace  setting] for the type of labor-management dispute where  intemperate language is often tolerated."  The Board also  considered it important that "no other employees heard or  observed Yonta's statement to Petrillo" and that the "comments were not made at work and did not have any direct  impact on worker discipline."  331 NLRB No. 12, slip op. at  2.


11
Felix asserts that the Board illogically assumed that private insubordination cannot affect discipline in the workplace. The Board, however, made no such assumption;  it simply  said that Yonta's rant "did not have a direct impact on  workplace discipline," suggesting quite reasonably that any  effect would be smaller than if his outburst had occurred in  the presence of other employees.


12
Felix also argues that because Yonta's obscene statements  were made outside the formal grievance process, to which the Board accords special protection, the place of discussion  should weigh against protection.  That is a non sequitur. The Board implied that the place weighed neither in favor of  protection, as it would if the obscenities had been used in a  formal grievance setting, nor against it, as it would if they  had been hurled at Petrillo in the presence of other employees.  That resolution certainly is not arbitrary and capricious.

B. Subject matter of the discussion

13
There is no dispute that Yonta telephoned Petrillo to  pursue his collectively-bargained right to be paid the night  differential.  Accordingly, the Board, along with the ALJ,  determined that the subject matter of their conversation  "concerned Yonta's rights under the collective-bargaining  agreement and thus constitute[d] protected ... activity."  Id.  at 2, 7-8.  Felix therefore cannot credibly argue that the  subject matter of the conversation does not weigh in favor of  protection.  Still, it tries.  Felix parses Yonta's words to show  that the obscenities, not surprisingly, had nothing to do with  Yonta's collective bargaining rights.  That of course misses  the Board's point:  As the Board explained, the obscenities  were "intertwined with [the] protected activity" -as they  are in every case governed by Atlantic Steel -and the  Board's task was to determine whether the employee lost the  protection of the Act as a result of the obscenities.  Id. at 3. Felix's attempt to bifurcate the conversation is unavailing,  therefore.

C. Nature of outburst

14
We agree with Felix that the Board's treatment of the  nature of Yonta's obscene eruption is problematic.  All the  Board said on this score is that "Yonta's conduct consisted of  a brief, verbal outburst of profane language, unaccompanied  by any threat or physical gestures or contact."  From that  the Board reasoned that this factor did not "weigh[ ] in favor  of Yonta losing the protection of the Act."  Id. at 2.


15
Recall that Yonta's outburst -though "brief" and "verbal" -consisted of calling his supervisor a "f--king kid" no  less than three times, and insisting that Yonta need not listen  to him.  That no threat or physical violence accompanied this insubordinate vitriol cannot, under established law, prevent it  from "weigh[ing] in favor of ... losing the protection of the  Act."


16
In Atlantic Steel the Board expressly disavowed any rule  whereby otherwise protected activity "would shield any obscene insubordination short of physical violence."  245 NLRB  at 817.  Yet the Board's treatment of the third Atlantic Steel  factor in this case runs toward precisely such a rule.  In  addition, this court previously rejected a suggestion from the  Board that employees engaging in protected activity "could  not be dismissed unless they were involved in flagrant, violent, or extreme behavior";  as we pointed out,           10(c) of the  National Labor Relations Act, 29 U.S.C.           160(c), permits  discharge for "cause" short of that.  Aroostook County v.  NLRB, 81 F.3d 209, 215 n.5 (1996);  see also Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 n.10 (1945) ("The Act,  of course, does not prevent an employer from making and  enforcing reasonable rules covering the conduct of employees  on company time").  If an employee is fired for denouncing a  supervisor in obscene, personally-denigrating, or insubordinate terms -and Yonta here managed all three with economy -then the nature of his outburst properly counts against  according him the protection of the Act.


17
The Board here truly does not contend otherwise;  rather,  it observes that it could, notwithstanding the nature of Yonta's outburst, deem his conduct protected as a result of its  overall balancing of the four factors.  That is correct but  irrelevant;  it does nothing to rehabilitate the Board's actual  treatment of the third factor in its order, where it blandly  asserts that Yonta's statements did not "weigh[ ] in favor of  Yonta losing the protection of the Act."  Under the applicable  precedents Yonta's statements do weigh against protection. Whether they weigh enough to tip the balance in that direction is for the Board to decide on remand.

D. Provocation by unfair labor practice

18
The Board, interpreting Petrillo's comment that he was  tired of "carrying" Yonta as "convey[ing] at least an implicit  threat that Yonta could lose his job for having engaged in the protected activity," found that Petrillo committed an unfair  labor practice, which in turn provoked Yonta's obscenities. 331 NLRB No. 12, slip op. at 2.  Felix challenges those  factual determinations.  First, Felix argues there is no evidence in the record that shows Petrillo's "carrying" comment  preceded rather than followed Yonta's vulgar outburst.  Actually, there is substantial and uncontradicted evidence to that  effect:  Yonta testified that the conversation unfolded in that  order, whereas Petrillo could not recall the sequence.


19
Second, Felix objects to the Board's characterization of  Petrillo's "carrying" remark about Yonta as an implied threat. The ALJ and the dissenting Member thought Petrillo's remark referred to Yonta's sub-par performance, not to his  claim to the night differential.  Id. at 4, 7.  There is evidence  in the record both that Yonta's performance was indeed subpar and that Petrillo tried to mollify Yonta, not to meet his  demand for the differential with a threat.  Still, the record as  a whole contains substantial evidence to support the Board's  characterization.  The Board reasonably found that "Petrillo's  remark was angrily made in response to Yonta's pressing his  right to extra pay under the contract.  Although Petrillo  credibly testified that he had previously received supervisory  complaints about Yonta's work, Petrillo did not testify that he  mentioned these complaints in the phone discussion." Id. at  2.  And, as the Board points out, Petrillo's statement must be  evaluated from Yonta's perspective:  Petrillo's intent in making the remark about carrying Yonta does not necessarily  mirror the impression it reasonably could have made upon  Yonta.  See NLRB v. Gissel Packing Co., 395 U.S. 575, 617  (1969).  Therefore, we find no reason to disturb the Board's  treatment of this factor.

III. Conclusion

20
Because the Board's offhand treatment of the nature of  Yonta's outburst departs from precedent, we hold that it is  arbitrary and capricious.  Upon remand of this case, the  Board will need to reexamine that factor as part of its overall  weighing of the Atlantic Steel factors.  In doing so it must


21
either adhere to precedent or else justify, if it can, its  departure therefrom.  Accordingly, Felix's petition for review  is granted, the Board's application for enforcement is denied,  and this matter is remanded to the Board for further proceedings consistent with this opinion.


22
So ordered.

