Over the past several years, EmployNews has reported on dozens of National Labor Relations Board cases expanding the concept of employee rights in even non-unionized workplaces. Earlier this month, the NLRB added to this list by concluding that an employer improperly threatened suspension of an employee who posted his recent disciplinary warning notice in his cubicle.

In Central States SE & SW Areas, Health & Welfare Pension Funds, the complaining employee received a written warning for failing to follow instructions to turn off his computer during a recent staff meeting. In addition to complaining about the disciplinary action. he laminated the warning and posted it in his cubicle, in a position visible to other employees who entered the area. The employer threatened to suspend the employee if he did not remove the posting. He did so, but filed an unfair labor practice charge with the NLRB, contending that the threatened suspension violated his right to engage in concerted activity under Section 7 of the NLRA.

The Board agreed, concluding that the posting was a protected communication with co-workers about terms and conditions of employment. In this context, the posting related to other communications made by the employee expressing his displeasure with the disciplinary action. While the NLRB did not state that such posting would be concerted activity in all situations, it rejected the employer’s contention that this behavior constituted insubordination.

The case demonstrates that even apparently childish or petulant behavior by employees can be protected according to the NLRB. Employers should carefully analyze any potential disciplinary activity taken against employees based on their reactions to performance or disciplinary warnings received in the workplace.