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NLRB finds unlawful ‘disrespectful conduct’ rule, firing worker for warning coworker his job was at risk

By Marjorie Johnson, J.D.

An employee engaged in protected concerted activity when he warned a coworker that his job was in jeopardy, and his employer violated the NLRA by firing him for exceeding his authority in the matter, which it claimed violated employee handbook rules barring “insubordination or other disrespectful conduct” and “boisterous or disruptive activity.” A divided NLRB also found that the rules themselves violated the NLRA, but Member Miscimarra disagreed. In a lengthy dissent he advocated for abandoning the “reasonably construe” test in favor of a balancing test under which handbook rules should only be struck down “if the legitimate justifications an employer may have for maintaining the rule are outweighed by its potential adverse impact on Section 7 activity” (Component Bar Products, Inc., November 8, 2016).

Fired for warning coworker. While working as an inspector in one of Component Bar Products’ manufacturing facilities, the employee became concerned that an absent coworker’s job might be in jeopardy since the plant manager seemed upset with him. After he called to warn him, the coworker became angry and complained to management that the employee should not have called to tell him he was fired. The company then fired the employee for having exceeded his authority, in violation of its employee handbook rules banning “insubordination or other disrespectful conduct” and “boisterous or disruptive activity in the workplace.”

The ALJ concluded that, pursuant to long-stranding Board precedent, the employee’s warning to the coworker that his job was at risk constituted protected, concerted activity. Moreover, the company justified its discharge of the employee, in part, on his protected conduct violating an unlawful “disrespectful conduct” rule that it maintained in its employee handbook. It also terminated him solely due to his protected activity.

Overly broad handbook rule. The NLRB agreed with the ALJ’s application of its Lutheran Heritage decision to find that the employer violated the NLRA by maintaining the two overly broad handbook rules, rejecting Member Miscimarra’s urging to change the standard. The Board also agreed with the judge’s determination that the employee engaged in inherently protected concerted activity when he called another employee to warn the employee that his job was in jeopardy and that the company violated the NLRA by discharging him for this activity. By his actions, he sought to join together with his coworker to help him avoid an adverse employment action.

Dissent finds handbook rules lawful. Though Member Miscimarra agreed with the Board’s finding that the employee engaged in protected concerted activity and that Component Bar Products violated the NLRA when it discharged him for doing so, he disagreed with its conclusion that the company violated the NLRA by maintaining the two work rules at issue. However, he did not believe that the handbook rules violated the NLRA and argued that the Lutheran Heritage “reasonably construe” standard should be abandoned since it “entails a single-minded consideration of NLRA-protected rights” without considering the many legitimate justifications associated with particular policies, rules and handbook provisions, “which may be associated with important justifications such as preventing unlawful harassment, reducing the risk of workplace violence, or avoiding potentially fatal accidents.”

Balancing test. Instead, workplace rules should be evaluated utilizing a balance test that takes into account the legitimate justifications associated with the disputed rules and any potential adverse impact on NLRA-protected activity. Under this standard and a “facially neutral” policy, rule or handbook provision should be declared unlawful only if the legitimate justifications an employer may have for maintaining the rule are outweighed by its potential adverse impact on Section 7 activity.

Applying this standard, Member Miscimarra would find that the two rules at issue were lawful. First, the prohibition against “insubordination and other disrespectful conduct,” wouldn’t violate Section 8(a)(1). The risk of the rule affecting the exercise of Section 7 rights was comparatively slight, since it was clearly aimed at unprotected conduct and its legitimate justifications were substantial. “Requiring that directives be obeyed and disrespectful conduct avoided is essential for preserving supervisory authority and maintaining order, discipline, and production.” Indeed, Member Miscimarra would reach the same result under the Lutheran Heritage standard since employees would reasonably construe the phrase “other disrespectful conduct” to refer to misconduct of the same kind or nature as “insubordination,” and would not interpret the rule as a prohibition against Section 7 activity.

The rule prohibiting “boisterous and other disruptive conduct” presented a closer issue. Section 7 activity need not be “boisterous” or “disruptive,” but it sometimes is. Therefore, the existence of a rule banning “boisterous and other disruptive conduct” has the potential to adversely affect NLRA-protected activity.

On the other hand, this type of rule clearly applied most directly to the enhancement of workplace productivity and safety—which were both substantial interests, particularly in a manufacturing facility. Thus, similar to a prohibition of roughhousing, this rule would discourage conduct that could result in injury to the employee engaging in “boisterous” or “disruptive” behavior and/or an injury to others. On balance, especially since only the maintenance of the rule was at issue, the dissent would find the legitimate interests advanced by the rule outweighed the potential adverse impact of the rule on Section 7 activity.