United States: Non-Union Employee's "Bad Attitude" Protected By The NLRA

As a reminder that non-union employees are also protected by the National Labor Relations Act (NLRA), the Seventh Circuit Court of Appeals in Chicago recently upheld a National Labor Relations Board (NLRB) decision holding that Staffing Network Holdings, LLC ("Staffing Network") violated the NLRA by twice threatening non-union employees with discharge for engaging in protected, concerted activity, and for actually discharging an employee Griselda Barrera for the same. See Staffing Network Holdings, LLC v. NLRB.

In this case, supervisor Andy Vega, told two employees to work more quickly. After one of the employees told Vega that he would not work faster for $8.25 an hour, Vega told the employee to go home since he was unable to keep up with work and because of his attitude.  This caused an immediate reaction among other employees who briefly stopped working to confront Vega about his decision.  Vega told the employees to get back to work or he would send them home as well.  Barrera, refused.  Vega told Barrera again that he could send her home.  To this, she asked if she was being threatened and said that she could send a letter to the Department of Human Rights.  Vega replied by telling her to collect her things and go home.  Barrera refused to go home, insisted that she had done nothing wrong, and continued to get other employees "worked up" about the "injustice."  Vega directed his assistant to tell Barrera to go home or he would get security to escort her out.  She believed that she was told not to come back to work.

As a result, Barrera filed an unfair labor practice charge with the NLRB. Staffing Network argued that it acted legitimately in light of the employees' insubordination.  Specifically, Vega argued that he did not send Barrera home because she was complaining about "injustice," but because she had been abusive and insubordinate, causing him embarrassment in front of other employees.  These arguments were rejected by the Administrative Law Judge and the NLRB.  Affirming the NLRB's decision, the Seventh Circuit found that, per Vega's own description of events, he asked Barrera to leave because she ignored his request that she get back to work and instead "continued to get the ladies in the line worked up saying this was going against the law and that they have to stand up against all the injustice..." Accordingly, the court held:

It is well settled that a brief, on‐the‐job work‐stoppage is a form of economic pressure entitled to protection under the Act. Molon Motor & Coil Corp. v. N.L.R.B., 965 F.2d 523, 525 (7th Cir. 1992) . . . Staffing Network terminated Barrera because of her concerted, protected activity in protesting Vega's treatment of Juan in relation to the terms and conditions of his employment and that of the pickers.  Namely, Barrera and Gutierrez both testified that Vega told Barrera to leave because she and the other pickers protested Vega's unfair treatment of Juan.  Therefore, substantial evidence supports the Board's finding that the company violated the Act when it discharged Barrera for engaging in protected, concerted activity.

What can employers learn from this decision?

This case is a another reminder that the NLRA protects non-union employees and evidences the NLRB's push to target non-unionized employers and expand worker rights.

Employers are encouraged to work with counsel to train management on how to identify and react appropriately in these situations. Prior to taking action, managers should be trained to consider (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst or alleged misconduct; and (4) whether the conduct was provoked by a perceived unfair labor practice. Train management on how to avoid inciting such behavior in the first place. For example, here, the fact Vega chose to make an example of the first employee on the shop floor in front of the other employees, invited their reaction to the same. Note that while Barrera may have been disrespectful, rude, or even used profane language, her actions remained protected under the NLRA. The NLRB has often protected an employee's use of profane language and refusal to return to work. This does not mean that "anything goes." Management should consider whether the insubordinate conduct is so hostile as to threaten to or cause harm to a supervisor or other employees.  An employee engaged in concerted activity that is a safety risk or violation of the law, will not be protected.

Bottom line, preventative and proactive policies and procedures are oftentimes the more constructive way management can avoid a union or union-like insurgence. However, when insubordinate conduct, aimed at protesting or otherwise addressing the terms and conditions of employment arise, managers should consult with counsel before taking disciplinary action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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