The National Labor Relations Board recently affirmed a decision that an employee’s rudeness and disrespect toward his supervisor (in this case the president of the company) did not necessarily warrant termination if the employee is exercising statutory rights. Blue Earth Digital Printing, Inc., 31-CA-133542 (2019). The employee, after a somewhat heated exchange with the employer, said: “I don’t think that you really care about our jobs or what we are doing because you are not allowing us to do our jobs.” The employee was fired.
Many employers do not understand that the National Labor Relations Act protects employees engaged in what is called “concerted activities.” Any time two or more employees act together with respect to wages, hours, and working conditions, there is a strong argument that they are engaged in protected concerted activities. Firing two employees who complained that the plant was too hot, for example, would probably be an unfair labor practice under the National Labor Relations Act. A rule prohibiting non-supervisory employees from discussing their wages (and consequently disciplining them for discussing wages) would be an unfair labor practice, as would the discipline.
Because discussions of wages, hours, and working conditions with employees can frequently get testy, the National Labor Relations Board has adopted rules to determine whether “disrespectful” comments of the employee toward the boss negates the employees protected rights. The Board looks at four factors: (1) where the discussion took place, (2) what the conversation was about, (3) how bad the employee’s outburst was, and (4) whether the outburst was provoked by the employer’s unfair labor practice.
With respect to these factors, a discussion in private between the employer and the employee is better for the employee than making disrespectful statements in front of other employees. Apparently, public acts of disrespect are less protected. As to the subject matter of the conversation, if the discussion was over serious workplace concerns , the outburst has more protection. A discussion about parking spaces or uniform colors might not. The third item, the nature of the outburst, is even more subjective. In the case of Blue Earth, the comment was considered lukewarm versus a profanity-laced tirade with threats of violence. The last item deals with whether the employee was reacting to the employer’s proper behavior or conduct that was unlawful.
When dealing with your employees, you have a reasonable expectation of civil, respectful, and polite conduct. Most employers expect a little push back from employees from time to time, including a little profanity. Firing an employee, however, for rude and disrespectful comments needs to be carefully evaluated to make sure the four elements above are considered. Even without a union, the National Labor Relations Board protects employees whose exuberance is explained by the exercise of their rights. In any event, the actual comments should be evaluated to determine if they are clearly disrespectful and rude, no matter what the subject.