Concerted Activity or Insubordination?

Labor & Employment Newsletter

Client Alert

With its recent decision in Central States SE and SW Areas, Health & Welfare and Pension Funds, 362 N.L.R.B. No. 155, 203 LRRM 2082 (August 4, 2015), the National Labor Relations Board (“NLRB” or “Board”) has provided another example of the importance it places on employee’s Section 7 right to participate in concerted activities relative to an employer’s need to promote professional, adult-like decorum in the workplace. Under the circumstances of the case, it seems the Board both stretched the meaning of concerted activity and ignored the employer and administrative law judge’s commonsense interpretation of the employee’s actions.

In the case, the NLRB reversed the decision of an ALJ that had held an employer had not committed an unfair labor practice when it ordered an employee to remove a laminated posting of a written disciplinary warning the employee had placed at his workstation. As the Board saw it, the employer had violated the employee’s right to engage in what is referred to as “concerted activity” and the employer’s threat to suspend the employee if he did not remove the posting “effectively promulgated” an unlawful work rule prohibiting other employees from discussing disciplinary actions through the posting of the disciplinary document.

The employer was an administrator of health and welfare benefit plans. The employee had been a part of the employer’s union-represented workforce for more than 21 years. He answered telephone inquiries by benefit plan participants. After his department manager gave him a written warning for failing to follow her instruction to turn off an electronic tablet during an employee meeting, he filed a grievance through the union. However, he did not stop there. He showed the warning to several other employees. Then, he laminated the written warning and posted it in his cubicle, next to his computer. It was visible to employees entering or approaching his workspace. Later, when the employer and union met to discuss the grievance, his manager complained that the posting was insubordinate and disrespectful. During the same meeting, an upper-level manager told the employee to remove the warning or the employee would be suspended for three days. The employee removed the posting, but the union filed an unfair labor practice charge, and an NLRB regional director issued a complaint against the employer. An administrative law judge reviewed the complaint, and after a hearing ended up dismissing it. The NLRB reversed.

Section 8(a)(1) of the National Labor Relations Act prohibits an employer from interfering with, restraining, or coercing employees in the exercise of rights guaranteed by the act, including the right to engage in protected concerted activity for the mutual aid or protection of employees. The ALJ, after hearing the testimony of all witnesses presented in the case, decided that the employee had not engaged in protected concerted activity by posting his written disciplinary warning because he was neither enlisting the support of his fellow employees nor attempting to induce group action. The Union had already filed a grievance on his behalf before he posted the warning, and there had been no evidence produced to show that any other employee wanted the freedom to use electronic devices in business meetings. As the ALJ determined the facts, the subject matter of the posting was a matter that concerned only the employee.

In dismissing the complaint, the ALJ rejected the General Counsel’s argument that the employee’s posting of the warning was a “logical outgrowth” of the filing of the grievance. The ALJ observed there had been no evidence suggesting that the posting advanced his cause in the grievance process in any way. As such, there was no relationship between the grievance and the posting.

The ALJ also rejected the General Counsel’s argument that the employer had promulgated an unlawful work rule prohibiting employees from posting disciplinary actions for purposes of discussing the discipline. As the ALJ explained, the admonition to remove the posting was not issued as a rule of general applicability. It was directed solely at the employee because it looked like he was deliberately mocking his supervisor. Since the statement had been directed at only one employee, it could not be considered a generally applicable work rule. Regardless, the ALJ observed that there had been no evidence offered to show that the alleged rule had been disseminated to other employees.

The General Counsel filed exceptions and, disregarding the ALJ’s firsthand evaluation of the witnesses and evidence in the case, the NLRB reversed. Relying on a very friendly construction of the facts in the matter, the Board saw the employee’s posting of the warning as protected concerted activity. It explained that an employer may not prevent employees from discussing their discipline with coworkers:

It is important that employees be permitted to communicate the circumstances of their discipline to their coworkers so that their colleagues are aware of the nature of discipline being imposed, how they might avoid such discipline, and matters which could be raised in their own defense.

The Board dismissed as unsupported the employer’s argument that the posting was disruptive, undermined management authority, and was insubordinate. In doing so, it said that the employer had provided no factual basis for deeming the posting insubordinate.

Going further, the NLRB majority also concluded that the employer had “effectively promulgated an unlawful rule” when it ordered the employee to remove his posting during the grievance meeting. As the NLRB saw it, the stewards attending the meeting could reasonably understand the direction to the employee as a warning that other employees should not post any disciplinary documentation. Based on this conclusion, the Board ordered the employer to post a notice to employees committing the organization “not to threaten employees for refusing to remove postings of disciplinary warnings” and rescinding “the rule.”

Interestingly, in reversing the ALJ’s decision, the NLRB not only refused to accept the factual findings made firsthand by the ALJ but also found protected a posting that, to many it seems, was nothing more than a childish reaction to discipline—the equivalent of a child sticking its tongue out at an adult. It served no good purpose in the workplace—either for the represented employees or the employer. Yet it was, according to the NLRB, a protected communication.

The message is clear: The NLRB is willing to perform mental gymnastics to construe almost any arguably communicative activity relating to discipline as protected concerted activity. As such, an employer should proceed with caution when responding to an employee that has “acted out” in response to discipline, especially if the employee’s actions can arguably be construed as a communication to other employees. While this matter occurred in a unionized setting, employers should be aware that the concerted activity protection can exist even in a non-unionized setting. Unless the action is clearly not communicative in nature, the NLRB may construe the communication as protected concerted activity.