The newly comprised National Labor Relations Board recently clarified a key outstanding issue for employers: when will an employee’s “outburst” or unprofessional conduct go so far that the National Labor Relations Act cannot protect the employee? The Board’s decision may disappoint employers who hoped the new Trump-appointed members would create a new test. Nevertheless, the decision provides important guidance about how the Board will address these situations going forward.
As background, the Act can put employers in difficult positions when employees complain about working conditions in an unprofessional manner. At default, the Act protects an employee when the employee attempts to improve working conditions for a group of workers. For example, subject to limits, the Act protects employees who strike, raise complaints to management, or protest working conditions on social media. Not surprisingly, employees do not always conduct themselves with the utmost professionalism in these situations. Mere unprofessional behavior does not, however, cause an employee to lose the Act’s protection.
Rather, the Board affords employees “some leeway for impulsive behavior” when they engage in these types of protected activities. The Act may still protect the employee even if the employee curses, raises her voice, complains in front of a customer, or invades another’s personal space. When the Board is deciding whether an employee went so far as to lose the Act’s protection, the Board considers: (i) the location of the discussion; (ii) the subject matter; (iii) the nature of the employee’s outburst; and (iv) whether the employer “provoked” the outburst by acting unprofessionally or violating the Act itself. The employee is more likely to retain the Act’s protection if, for example, the outburst occurs after working hours, away from customers, or if a supervisor acted unprofessionally as well.
This recent decision arose after an employee had contentious conversations with several managers. The employer at issue had created a new “lead” position, and the employee did not believe the position was necessary. At a meeting, the employee challenged the employer’s decision by claiming the employer was assigning them a “babysitter” and vigorously disputing the employer’s reason for creating it. The employee accused one manager of lying, and requested to speak to a second manager. When the second manager arrived, he was upset that the employee had forced him to address the situation, and the two loudly exchanged words. The employee argued with the second manager and accused him of not caring about employees, while the second manager invaded the employee’s personal space.
The next day, the employee and some coworkers approached a human resources official to complain. This conversation became contentious as well. The employee and the HR official both raised their voices, and the HR official made several dismissive comments. When the HR official told the employee to leave, the employee declined to do so immediately, which prompted the HR official to call the police. Ultimately, the employer discharged the employee for “intimidating” and “threatening” behavior, and for escalating the disputes with the managers. The employee responded by filing an unfair labor practice charge.
By the time this dispute reached the Board, which now includes two Trump Administration appointees, many expected the Board to take this opportunity to create a new test that better recognizes employers’ interests. But, to the dismay of many, the Board applied the same test that it has applied for years. Ultimately, it held that the employee had engaged in protected activity by complaining about the new lead position and the managers’ conduct, in an attempt to improve matters for a group of employees. The Board also held that the employee had not gone so far as to lose the Act’s protection because, for example, the managers themselves acted unprofessionally and escalated the disputes, the employee did not use profanity or specifically threaten anyone, and the disputes occurred away from working areas and customers.
For employers, this case shows that the Board will continue giving employees “some leeway” for unprofessional behavior when they are otherwise exercising their rights under the Act. Accordingly, employers should remember that mere cursing or unprofessional behavior will not necessarily allow the employer to impose discipline. At the same time, employers can improve their position by ensuring that their own front-line supervisors understand the applicable rules, continue acting professionally themselves, and avoid the types of behavior that the employer wishes to prohibit from employees.