By now private employers should be well aware that employees who openly criticize management and refuse to obey instructions will often be found to be engaging in lawful, protected activity by the NLRB. Another very recent decision by the NLRB brings home that point again – even where no union is involved.

Refusal to Go Home

This case involved a staffing agency that provided employees to a client to stock its products. The agency’s clients have the right to remove staffing agency employees and tell them not to return. One of the agency’s stockers stated that he would not work any faster for a mere $8.25 an hour. The supervisor was shocked at that comment and told the stocker to go home because he couldn’t keep up and because of his “attitude.” That angered several of the other stockers, who complained to the supervisor that it wasn’t fair to send the other stocker home. The supervisor then confronted the other stockers and, in a raised voice, said that “it wasn’t the stockers’ matter to deal with and that they should get back to work and that that he could send the other stockers home for their attitude.” That created even more reaction from the other stockers, one of whom refused to go back to work. The supervisor again raised his voice and said that security would be called. Ultimately, the stocker gathered her things and was escorted off the premises and told not to return.

This “Insubordination” Warrants Reinstatement and Back Pay

The stocker filed a charge with the NLRB alleging that she had been unlawfully fired for supporting a coworker. The employer argued that the employee had been insubordinate in her refusal to leave when requested. The NLRB found that the stocker’s actions were protected and ordered her to be reinstated with back pay.

The NLRB’s reasoning follows a familiar pattern.

  • Unrepresented employees who engage in a peaceful work stoppage to protest the termination of a fellow employee are engaged in protected concerted activity. Even a single employee’s complaint about the treatment or discipline of another constitutes concerted activity.
  • Although the employer claimed it discharged the stocker for insubordinate behavior, the NLRB distinguishes between true insubordination and behavior that is only disrespectful, rude and defiant.
  • The employee never raised her voice, used profane language or uttered threats and so, according to the NLRB, her behavior was not truly insubordinate and that her momentary refusal to return to work did not remove her from the Act’s protection.
  • The supervisor chose to send the “slow” stocker home while on the shop floor and, thus, should have expected the reaction of the other employees.
  • The subject matter of the complaint of the other stockers was the decision to discharge another employee. Unrepresented employees who engage in a peaceful work stoppage to protest the termination of a fellow employee are engaged in protected concerted activity.
  • The employee’s behavior was not “exuberant or hostile.” She did not raise her voice or threaten the supervisor and nothing about her outburst rendered her unfit for further service, according to the NLRB.
  • The employer’s unlawful threats of termination were sufficient provocation to motivate the employee to briefly refuse to leave work when asked to do so.

Lessons for Private Employers

If all of this has a familiar ring, it should. Private employees have the legally protected right to engage in activities for their mutual aid and protection – even if no union is involved. Group action is not necessarily a requirement for activity to be protected. It is clear that a single employee who, without raising their voice or threatening actual violence, will be protected in challenging management’s treatment of another employee. Sometimes management’s own behavior (e.g., raising their voice or threatening discharge) can provoke an employee into activity that becomes protected even if it borders on insubordination. But, there are times when even the NLRB will say that employees have gone too far and were truly insubordinate.

Reference: Staffing Network Holdings (NLRB February 4, 2015)