Employers often encounter situations involving the argumentative, aggressive and opprobrium conduct of employees during department or other group meetings, appraisals or disciplinary meetings with supervisors.

Even though the opinions or arguments of employees on the subject discussed at these meetings may constitute a “protected activity” under the national labor relations law (“Act”) (see legal alert “Intrinsically protected activityApril 5, 2021), the manner and circumstances in which employees voice their opinions can render their conduct unprotected.

Under established case law developed by the National Labor Relations Board (“Board”), the Board considers four factors in determining whether employee conduct becomes unprotected under the Act:

  1. The place of discussion;
  2. The subject of the discussion;
  3. The nature of employee statements;
  4. If the explosion was caused by the unfair labor practices of the employer.

Atlantic Steel Co. 245 NLRB 814, 816 (1979).

As part of this analysis, the Commission considers the circumstances under which the employee statements were made, such as whether the employee’s conduct interfered with the work in progress, whether the subject of the discussion concerned the terms and conditions of employment and whether employee statements are abusive, threatening or vulgar.

When faced with employee conduct that the employer believes warrants disciplinary action, the analysis described above should be carefully considered with the assistance of legal counsel.