The National Labor Relations Board continues to scrutinize employer personnel decisions and workplace policies that arguably trigger the protections of § 7 of the National Labor Relations Act. Recall that this section of the Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” as well as the right “to refrain from any or all such activities.” Such concerted activities can include discussing employment terms, conditions and rules or lodging complaints about the workplace. What causes management attorneys to shudder is the invocation of such protections even when the alleged concerted activities involve bad behavior.

Recent decisions by the Labor Board and some court decisions have stretched the concerted activity protection in favor of employees. For example, in Pier 60, LLC., 362 NLRB No. 59 (2015), the Board ruled that an employee’s profanity-filled post on Facebook, which described his manager as a “NASTY MOTHER F***ER,” was protected concerted activity because it arose out of concerted employee complaints that a catering manager had treated wait staff employees rudely while ordering them to spread out and move around during an event they catered. The Labor Board described the adverse Facebook comments as “part of a sequence of events involving the employee’s attempts to protest and ameliorate what they saw as rude and demeaning treatment on the part of Respondent’s managers.” While the Labor Board had previously issued a decision addressing when workplace outbursts would lose their protection under the Act, it found that the total circumstances at hand enabled the Board to grant protection to this employee.

This decision is just one of many that perplex employers and their counsel when evaluating how to handle rude and aggressive behavior. While instinctively such conduct would always seem to warrant serious discipline, it is critical to analyze the context in which the behavior occurred to be certain that it does not warrant § 7 protection. Likewise, making management aware of these limitations through training about protected activities enables employers to avoid a Labor Board challenge.