Thursday, March 5, 2015

When Is It Insubordination and When Is It Protected, Concerted Activity?

In its continuing emphasis on extending the protections of the National Labor Relations Act to non-union employees, the National Labor Relations Board in Staffing Network Holdings, LLC, 362 NLRB No. 12 (February 4, 2015) upheld the recommended decision and order of an administrative law judge finding that a staffing agency’s action in terminating an employee who engaged in allegedly insubordinate behavior in support of a co-worker was guilty of an unfair labor practice.  This case illustrates the sometimes difficult line-drawing that a front-line supervisor must do in deciding whether it has grounds for disciplining an employee who defies the supervisor’s instructions in conjunction with offering support to a co-worker.

The ALJ’s statements in the case are instructive.  She says that “[u]nrepresented employees who engage in a peaceful work stoppage to protest the termination of a fellow employee are engaged in protected concerted activity….  Under Board law, even a single employee’s complaint about the treatment or discipline of another constitutes concerted activity.”

The question then becomes whether the activity, while concerted, is also protected where the protest amounts to or includes insubordinate behavior, such as defiance of a supervisory order to return to work.  In Staffing Network, the ALJ answered this question by saying that “the Board has found that a line ‘is drawn between cases where employees engaged in concerted activities that exceed the bounds of lawful conduct in a moment of animal exuberance and those flagrant cases in which the misconduct is so violent or of such a character as to render the employee unfit for further service.’”  Thus, the ALJ said, “[t]he Board has held protected an employee’s use of profane language and refusal to return to work”, even when the supervisor subjectively believes that the employee has been rude and disrespectful, embarrassing her in front of other employees.

Although the line is difficult to draw, especially when dealing with a situation that develops quickly and unexpectedly, the law appears to allow a certain amount of latitude to employees to protest the treatment of co-workers and requires that the insubordination be clear and indisputable before the protection given to the employees’ activities is removed.  Thus, in a non-union environment, a supervisor when directing an employee to return to work must make his instructions clear, must verify that they are understood, and must use the threat of discipline only in the event that the behavior in question amounts to gross insubordination, i.e., behavior that is “exuberant or hostile” or that threatens or causes harm to the supervisor or other employees or damage to the workplace.  It is unclear from this decision as to how much disruption of work is permitted, but it is clear that short-lived, relatively peaceful, disruptions may have to be tolerated if the employees otherwise are engaged in protected, concerted activities.