Disciplining an employee who protests working conditions at your company will put you at risk of being charged with an unfair labor practice, even if you're a nonunion employer. Case in point: The president of the Caval Tool Division was unhappy with worker productivity so he gathered his workers to announce a new break policy. It limited employees to two 10-minute breaks a day.
During the Q&A period, Diane Baldessari, a computer programmer, aggressively questioned the president about the policy. She blamedfor the low productivity and complained about the supervisors. When the president asked if she'd like to fire all the managers, she said it would be a good start, except for the one she considered a good manager.
That afternoon, Baldessari was suspended without pay for an indefinite period. She was allowed to return to work three weeks later but was put on probation.
Baldessari filed a complaint with the National Labor Relations Board (NLRB), which ruled that the suspension and probation constituted an unfair labor practice. Reason: Her comments were protected because the National Labor Relations Act (NLRA) protects employee speech that is directed at a change in the terms and conditions of employment. The 2nd Circuit Court of Appeals upheld the decision.
Under a long-standing board doctrine, the court noted, an individual employee's speech is protected as long as it has the goal of "initiating or inducing group action." (NLRB v. Caval Tool Division, No. 00-4203, 2nd Cir., 2001)
Advice: Hold off on your immediate impulse to discipline employees you think are insubordinate if they protest company policies affecting the terms and conditions of employment. Their comments may be protected under the NLRA.
However, that doesn't mean you have to tolerate abusive behavior or insubordination. As the court noted, "The employee's right to engage in concerted activity may permit some leeway for impulsive behavior, which must be balanced against the employer's right to maintain order and respect."
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