Laptop and pen


Chris Sanders July 29, 2018

In a recent case Meyer Tool Inc. the National Labor Relations Board (NLRB) upheld the traditional legal test used to assess the question: when will an employee’s “outburst” or unprofessional behavior lose the employee the protection of the National Labor Relations Act (NLRA).

The NLRA provides protection for employees whose conduct is “concerted” and for the “mutual aid and protection” of workers. For example, employees have the right to raise complaints to management regarding employee concerns, without fear of reprisal. However, employees don’t always conduct themselves in the most respectful manner during these often angry and frustrating times.

NLRA protections can be lost when employees cross the line and act in unprofessional ways. The question becomes when is that line is crossed. This can be a difficult determination to make. The Board has said in the past that employees are permitted “some leeway” for impulsive behavior when engaged in protected activity, because the “protections Section 7 affords would be meaningless were we not to take into account the realities of industrial life and the fact that disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses.” Consumer Power Co., 282 NLRB 130, 132 (1986).

The NLRB uses a four-part test to determine when the line is crossed and employees lose protection under the NLRA. The Board will consider: (i) the location of the discussion; (ii) the subject matter; (iii) the nature of the employee’s outburst; and (iv) whether the employer “provoked” the outburst by acting unprofessionally or violating the NLRA itself. Atlantic Steel Co., 245 NLRB 814 (1979).

In Meyer Tool, a night shift employee had numerous contentious interactions with management. Prior to the confrontations, Meyer Tool had undergone some quality control issues. The night shift and day shift assembly line workers were at odds over who was responsible for the issues. In response, management hired a night shift manager to oversee the night shift workers. A night shift employee vigorously disagreed that the position was necessary, saying that he did not need a “babysitter” and questioned the capability of the new manager. During a meeting regarding the night shift manager, the employee called one manager a liar and requested to speak to his supervisor, the Vice President of the company. Upon arrival, the employee and Vice President exchanged heated words. The employee said the Vice President did not care about his employees, while the Vice President invaded the employee’s personal space and making threatening moves toward the employee.

The next day, the employee presented his complaints about the night manager and the Vice President to HR. The conversation with the HR official became contentious and both parties raised their voices. After the HR official made several dismissive comments, she told the employee to leave. When the employee refused, the police were called to escort the employee from the premises. The employee was later fired for “intimidating” and “threatening” the employer. The employee filed an unfair labor practices charge.

The Board found that the employee’s actions were protected, because he was complaining about the new managers credentials, as well as the actions of the other management staff, for the benefit of all employees. The Board ruled that this qualified the employee for protection under the NLRA because the actions were concerted and for the mutual aid and protection of the workers. The Board also found that the employee did not lose the protections of the NLRA by acting unprofessionally.  The Board ruled that the employer had also acted unprofessionally in handling the situation, that the interaction took place in HR (where the complaints should be addressed) and that HR provoked the employee.

This case is illustrative for employees in that it shows that acting unprofessionally does not necessarily mean that employees can be disciplined. If an employee is acting in a way that qualifies for protection under the NLRA, employers must allow for “some leeway” before being allowed to impose discipline, such as cutting hours or firing. If you feel like you have been discriminated against or disciplined, in violation of your NLRA rights, do not hesitate to contact me.