Employees May Be Disciplined for Abusive Conduct, Even in Context of Protected Activity

Affirming that employees may be disciplined for abusive conduct that might otherwise be protected by the National Labor Relations Act (NLRA), the National Labor Relations Board remanded a case to the administrative law judge (ALJ) to analyze whether the employee in this case was lawfully disciplined for his inappropriate conduct during a safety meeting.

In Wismettac Asian Foods, Inc., an employee voiced group concerns in a safety meeting with other employees and supervisors present. While voicing these concerns, which occurred during a hotly-contested union campaign, the employee interrupted a supervisor, raised his voice, and crossed his arms over his chest. The employer issued the employee a verbal counseling for his conduct during the safety meeting. The ALJ determined that the employee did not lose the Act’s protections. In analyzing this issue, the ALJ analyzed the issue under the Board’s now-outdated Atlantic Steel standard for assessing whether an employee loses the Act’s protections through words or conduct while engaging in protected concerted activity. Following the ALJ’s decision, however, the Board held in General Motors that it would no longer apply the Atlantic Steel test when analyzing whether an employer has unlawfully disciplined an employee for allegedly engaging in abusive conduct during the course of activity protected by the Act. Instead, the Board will assess whether the employer would have taken the same action absent the employee’s protected activity (we discussed General Motors here). Accordingly, the Board remanded the case to the ALJ to apply the General Motors standard to the facts of this case. We will keep you updated regarding developments in this case.

The Board also held that the employer violated Section 8(a)(3) of the NLRA when it refused to rehire a union supporter for using profanity during a group meeting. The individual had previously worked for a staffing agency and was displaced when the staffing agency terminated its contract with the employer. When the employee applied directly with the employer, the employer refused to consider or rehire the employee. The Board affirmed the ALJ’s finding of a violation, noting that while the employer articulated a legitimate reason or not considering for rehiring the individual – i.e., his use of profanity during a group meeting – the employer failed to establish that it would have taken the same action absent the individual’s union activity. The employer thus failed to meet its burden under the Board’s familiar Wright Line burden-shifting framework.

This case reinforces that employers may discipline employees for engaging in abusive conduct even while the employee is engaged in conduct protected by the NLRA. But an employer must be able to establish that it would have taken the same action against the employee even absent his or her protected conduct. As the Board explicitly stated in this case, it is not sufficient to merely articulate a legitimate reason for discipline; the evidence must establish that the employer would have taken the action absent the employee’s protected activity.