Employers often confront situations involving employees’ argumentative, aggressive, and opprobrious conduct during department or other group meetings, evaluations, or disciplinary meetings with supervisors.
Even though the employees’ opinions or arguments on the subject matter discussed at those meetings may constitute “protected activity” under the National Labor Relations Act (“Act”) (see Legal Alert “Inherently Protected Activity” April 5, 2021), the manner and surrounding circumstances in which employees express their views may render their conduct unprotected.
Under established case law developed by the National Labor Relations Board (“Board”), the Board considers four factors in order to determine whether employees conduct becomes unprotected under the Act:
- The place of the discussion;
- The subject matter of the discussion;
- The nature of the employee statements;
- Whether the outburst was provoked by employer’s unfair labor practices.
Atlantic Steel Co. 245 NLRB 814, 816 (1979).
Under this analysis, the Board examines the circumstances under which the employees’ statements were made, such as whether the employees’ conduct disrupted ongoing work, whether the subject of the discussion concerned terms and conditions of employment and whether the employees’ statements constitute abusive, threatening or vulgar language.
When faced with employee conduct that the employer believes justifies disciplinary action, the above described analysis should be closely considered with the assistance of legal counsel.