Concerted Activity or Insubordination?

The U.S. National Labor Relations Board broadened the meaning of concerted activity under the National Labor Relations Act and reversed an administrative law judge’s ruling that the employer did not commit an unfair labor practice by ordering an employee to remove a laminated posting of a written disciplinary warning posted at his workstation in Central States SE and SW Areas, Health & Welfare and Pension Funds. The ALJ had determined that there was no relationship between the grievance, which was filed by the employee through the union after he was given the written warning for failing to follow a department manager’s instruction to turn off an electronic tablet during an employee meeting, and the employee’s posting of the warning and that the admonition to remove the posting was not issued as a rule of general applicability because it was directed solely at the employee due to the belief that he was deliberately mocking his supervisor.

However, NLRB determined that the employer had provided no factual basis for deeming the posting insubordinate, that an employer may not prevent employees from discussing their discipline with co-workers, and that the employer had “effectively promulgated an unlawful rule” by ordering the employee to remove the posting during the grievance meeting. Experts say NLRB’s decision means that it is likely to construe nearly any arguably communicative activity associated with discipline as protected concerted activity and that employers must use caution when disciplining employees who act out, particularly if the employee’s actions can be construed as communicating to other employees.

For the full article: Lexology (08/17/15) Chuck Mataya