With newly appointed members joining the National Labor Relations Board, comes new considerations for employers. Recently, the Board has looked at the question that many employers find themselves asking: “When has an employee’s ‘outburst’ gone too far?” While the Board has not created a specific test to answer this question, it has determined an important guidance on how it will be addressed in the future.
The National Labor Relations Act protects employees when they make an attempt to improve working conditions for themselves and other workers. However, as we have seen in previous blog posts (see here and here), employees do not always conduct themselves in the most professional manner in certain situations. While acting in “unprofessional” manner might not be enough to lose the protection provided by the Act, an employee can, and sometimes does, go too far.
When tackling this issue, the Board has a number of considerations they take a look at. The Board considers where the discussion took place, the subject matter of it, the nature of the discussion, and whether the employer may have “provoked” such a discussion by acting unprofessional or in violation of the Act. The further away the employee is from acting in his capacity as an employee, the more likely the Act can protect what is said.
More specifically, the Board has made determinations based on these considerations that provide further guidelines in the decision making process. Recent insight into these guidelines came from a decision made after the Board heard a case involving an employee who had argumentative conversations with several managers regarding a new position in the workplace. The employee believed the position was unnecessary, seeing it as a way for the employer to “babysit” him, and challenged the decision at a meeting. As the discussion escalated, the meeting turned into a large argument leading the employee, and other coworkers, to approach human resources and complain. During this complaint, the employee and HR official raised their voices, with the HR official making many dismissive comments. After the HR official told the employee to leave, the employee would not, and the police were called on him. Needless to say, the employee was discharged for “intimidating” and “threatening” the HR official and escalating the disputes he made regarding the new position with the managers. The employee then filed an unfair labor practice against the employer.
In the end, the case was introduced to the Board who determined that the employee had not gone too far to lose the Act’s protection. Although the employee did raise his voice to both the managers and the HR official, and the police were called on him, he still was engaging in protected activity by complaining about a workplace concern and the manager’s conduct.
Although the decision is not based on a new test, it does show employers one important idea: The Board will give employees leeway in their behavior when, otherwise, they are exercising their rights that are protected under the Act. Remember, an employee cursing or acting in an overall unprofessional manner is not necessarily enough for an employer to take disciplinary actions. However, employers can support their decision in taking disciplinary actions by making sure their own actions remain professional and act in a way they expect their employees to act.
