The NLRB Gives An Employee Four Strikes And He's Still Not Out

The National Labor Relations Act gives employees the right to engage in activities together with and on behalf of their co-workers to improve working conditions, called protected concerted activity. The question frequently arises as to the outer bounds of this right. How far can an employee take the cause?

A recent decision by the NLRB suggests that the boundary seems quite far. The Board’s decision on June 17 in Intertape Polymer Corp. reversed a judge’s decision that an employee who refused his supervisor’s request to sit down, stood blocking the supervisor’s office doorway, refused four times his supervisor’s request to leave the office as he was growing more confrontational, and disparaged his supervisor by asking whether he was a man, crossed the line. The employee was also a union steward, and was in the supervisor’s office to represent a co-worker about a machine issue, so there was no dispute that the two employees were engaged in concerted conduct. The question was whether the steward’s conduct was protected.

In his fact finding, the Judge determined that the employee-steward was aggressive, refused to leave unless issued a direct order, and sought to assert “some kind of psychological advantage over a newly installed management official.” In sum, even if the activity were concerted, it did not insulate the employee from discipline. Brushing aside these findings and overruling the Judge, the NLRB said the employee did not lose the protection of the Act and that the employer’s suspension of the employee was not justified. Apparently, four warnings to leave the office were not enough.

In weighing protected activity, the NLRB applies a four-factor test that first appeared in its 1979 decision in Atlantic Steel Co. and was given new life in the 2023 decision in Lion Elastomers (1) where did the conduct take place; (2) what was the subject matter; (3) what was the nature of the employee’s outburst (or misconduct); and (4) whether the outburst was provoked by the company’s own unfair labor practices. The Board’s 2020 test in General Motors would analyze the conduct at issue regardless of the setting: i.e., if the employer was motivated to reprimand misconduct and the conduct was egregious enough, additional context would not matter.

These two legal tests then ask very different fundamental questions. In the expansive test, now in vogue, the question is whether the employee was engaged in traditional protected activity and if so, how far may the employee go. This analysis tolerates a wide range of misconduct and is susceptible to wider boundaries. The other test asks whether the conduct merited discipline and permits an employer to set reasonable standards such as preserving workplace civility and prohibiting threats and profanity.

In the case described above, if it is unacceptable for an employee to act in the workplace as the employee did, then it should be unacceptable no matter the circumstances. Repeatedly disobeying a manager’s order to leave the office risks a combustible situation. Four strikes do not an at-bat make. Questioning a male manager’s manliness could be highly insulting and even unlawful under a hostile work environment test. By justifying this conduct since it did not contain any express threats or involve physical contact, the Board sanctions an impractical workplace precedent.

If the context affords an employee this much leeway, since it did not contain any express threats or involve physical contact, does an employee ever cross the line? Is it when there are physical fights rather than fighting words? The NLRB plays a role in establishing standards for workplace behavior but time and time again lowers the standards where union activity is involved. The NLRB gave an employee four swings (four times to refuse his supervisor’s directives), and the employee still wasn’t out. As in baseball, the rules should be clearer and consistently applied.

This case development is cautionary regarding disciplinary action taken to maintain workplace respect and civility in the face of union advocacy that a reasonable person would agree crosses the line. If you have questions about how this decision affects your workplace, please contact Edward J. Bonett, Jr., Esq. via email here or at 908.546.6991, or any of the Partners in our Labor Law Practice.