Insubordinate Behavior May Be Protected Under the National Labor Relations Act

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Although difficult to accept, employers may be required to tolerate insubordinate and unprofessional behavior from employees when such behavior is connected to protected conduct under the National Labor Relations Act – a point that the National Labor Relations Board made in a recent case.

Protected Concerted Activity and Misconduct Under the National Labor Relations Act. Section 7 of the NLRA protects the rights of employees, whether unionized or not, to engage in “concerted” (i.e. group) activity for their mutual aid or protection (referred to as “protected concerted activity”). Section 8 prohibits employers from interfering with those rights.

The issue of when employees may be disciplined for misconduct occurring during the course of protected concerted activity is one that has swung back and forth with the change between Republican and Democratic administrations. Previously, the Board applied “setting-specific” standards to determine whether an employee lost the NLRA’s protection during the course of their protected conduct. More specifically, the Board applied a four-factor test (Atlantic Steel) when addressing employees’ conduct towards management in the workplace, in which it reviewed four factors:

  1. The place of the discussion;
  2. The subject matter of 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.

Then in 2020, in the General Motors case, the Board overruled the patchwork of setting-specific standards, replacing them with the well-known Wright Line standard to address all cases where employees are alleged to have engaged in abusive conduct in connection with protected activity. Wright Line utilizes a burden-shifting framework, under which the NLRB General Counsel (GC) must first establish that the employee’s protected conduct was a substantial or motivating factor in the disciplinary decision. If the GC meets that burden, the employer must then prove that it would have taken the same action absent the employee’s protected activity. Pursuant to General Motors, the Board thereafter applied a single, consistent standard to assess employer decisions to discipline employees who engaged in misconduct while arguably engaged in protected activity.

But then in 2023, in Lion Elastomers, LLC, the Board announced a return to the pre-2020 “setting-specific” standard, as discussed in our May 5, 2023 E-Lert. Under this more lenient standard for misconduct, an employer will have violated the NLRA where the Board has determined that the conduct for which the employee was disciplined was “insufficiently serious” to lose the NLRA’s protection.

The Board’s Decision. In Intertape Polymer Corp., both an employee and union steward became involved in a heated discussion with the supervisor over how the supervisor handled a malfunctioning machine. Both were suspended after the union steward refused the supervisor’s directive to return to work. Applying the Atlantic Steel factors, the Board determined that neither the employee nor the union steward lost the protection of the Act.

As to the place of discussion, the heated discussion began on a loud shop floor and continued in the supervisor’s office, so that no other employees heard the discussion or had their work disrupted. This argues in favor of protection.

As for the subject matter of the discussion, the employee requested the assistance of the union representative and they discussed a potential grievance over the supervisor’s departure from past practice (in handling the malfunctioning machine) and a safety concern that potentially violated the collective bargaining agreement, followed by a discussion between the union steward and the supervisor regarding the employee’s suspension. The Board asserted that “such discussions are especially important to the effectiveness of contractual grievance-arbitration mechanisms and are therefore protected as a critical aspect of collective bargaining under the Act, even when the technical procedures of the grievance arbitration mechanism are not followed.”

With regard to the nature of the outburst, although disrespectful, the employee did not engage in violent or threatening behavior or use abusive language, and was therefore deemed not sufficiently “opprobrious or extreme” so as to lose protection. And although the union steward’s conduct was more combative, he did not use physically threatening or intimidating statements and had no history of violent or threatening behavior, and the Board stated that “the Act clearly protects such conduct by an employee-representative in the course of dealing with the employer on behalf of employees.”

And finally, as to whether the outburst was provoked by an unfair labor practice, the Board concluded that the employee’s outburst was not, but the union steward’s outburst – which was connected to the employee’s suspension – clearly was. Thus, on balance, the factors favored a finding of protection for both the employee and union steward.

Lessons for Employers. It is important for employers to educate their supervisors and managers that they may not necessarily be able to discipline employees for insubordination, if it is connected to protected concerted activity. Supervisors and managers must be trained on how to recognize protected concerted activity (which can come in many forms and about many issues), and how to remain calm and disengaged in the face of such conduct. Unfortunately, a supervisor’s or manager’s normal and understandable reaction to insubordination (e.g. an angry response and/or discipline) may violate the law.