Q&A: Insubordination may be protected under NLRA

Question: One of our employees yelled at our plant manager during a team meeting and called the manager “the devil incarnate,” said that the manager “must enjoy torturing the crew,” and that “working here was a living hell.” He was complaining because the manager was requiring mandatory overtime during the most recent heatwave. We follow all of our state’s heat illness rules and provide extra breaks and water for employees when it gets hot. The manager terminated the employee for insubordination based on the yelling and name calling. Now the employee is threatening to go to the National Labor Relations Board. Was this behavior actually protected?

Answer: Probably. The National Labor Relations Board recently issued a decision returning to a “setting-specific” standard for evaluating employee misconduct while engaging in conduct that is protected by the National Labor Relations Act (NLRA). The Board wrote: “To fully protect employee rights, conduct during protected concerted activity must be evaluated in the context of that important activity—not as if it occurred in the ordinary workplace context” (Lion Elastomers LLC, NLRB, May 2023).

In evaluating whether to discipline for an outburst, you should consider the place, subject matter, and nature of the employee’s outburst, and whether it was provoked by an unfair labor practice. The NLRA protects the rights of most non-management workers to band together on issues related to wages, hours, and working conditions, even if they’re not represented by a union. Always contact your Vigilant Law Group employment attorney before disciplining an employee who has engaged in misconduct while complaining about the terms and conditions of work, and we will help you to determine if the employee’s conduct is protected.