Angry Employee Behavior May be Protected Conduct Under the NLRA

An article by Shawe Rosenthal cautions that employers may be required to tolerate insubordinate and unprofessional behavior from employees if it is connected to protected conduct under the NLRA (National Labor Relations Act).

Section 7 of the NLRA protects employees’ rights to engage in “concerted” (i.e., group) activity for mutual aid or protection. Section 8 prohibits employers from interfering with those rights. Interpretation has swung back and forth between Republican and Democratic administrations.

In Intertape Polymer Corp., an employee and union steward argued heatedly with a supervisor over how the supervisor handled a malfunctioning machine. Both the employee and the steward were suspended after the steward refused to return to work as the supervisor directed.

The National Labor Relations Board applied the so-called Atlantic Steel factors and determined that both the employee and the steward were protected by the NLRA. The factors are the place of the discussion, the subject, the nature of the employee’s outburst, and whether an employer’s unfair labor practice provoked it.

The key factors were that the argument occurred in a place where no other employees heard it or had their work disrupted. The subject was standard union business, a grievance about the supervisor’s practice. The employee and the steward were disrespectful, but neither engaged in violent or threatening behavior or used abusive language. 

Concerning whether an unfair labor practice provoked the argument, the Board concluded that the union steward’s outburst clearly was. Thus, the factors favored protection for both the employee and steward.

The article concludes that employers should educate their supervisors and managers about protected concerted activity and how to remain calm and disengaged in the face of angry conduct. What may be a normal and understandable reaction to insubordination could violate the law.