Insubordination Horror Story (a/k/a NLRB PCA Initiative)

How would you have handled the following personnel matter?

A supervisor and HR director met with an employee to provide him with a first-level attendance counseling. The employee became quite angry and refused to sign the counseling document. He then told the supervisor that he was incompetent (and repeated this comment over and over). He stated (and restated) that management was a “bunch of liars” and complained about low pay for him and others. When management tried to discuss his concerns with him, he told them that he did not trust them and he continued his disparaging comments. The HR manager ended the meeting. She advised the company president of the facts.

As further context, the employee does not belong to any protected classes. While his work performance was good, he was a negative person who was never satisfied. The company decided to terminate the employee for his misconduct and insubordination. Do you see any legal risks as to this decision?

A few days later, the company received notice from the National Labor Relations Board that a local union had filed an unfair labor practice charge against the company on behalf of the terminated employee. The charge alleged that the company unlawfully terminated the employee for exercising his Section 7 right to complain about the terms and conditions of his employment.

During a subsequent conversation with the NLRB’s “neutral” investigator, she informed me that the Labor Board considered the employee’s conduct to be “protected” and “concerted” because the employee complained about pay. (The Labor Board considers these to be “Protected Concerted Activity” or “PCA” cases.) As part of its investigation, the Labor Board requested 11 different categories of documents/information including the company’s entire employee handbook, a complete list of all of its employees including home address, phone numbers and email addresses, and the company’s disciplinary history as to other employees.

The company faced a challenging decision. A decision to litigate would mean that the Labor Board would likely file a Complaint that would result in a trial before a NLRB judge in a case with some legal risk. There would also be the possibility of subsequent appeals (i.e., years of litigation, expense and uncertainty). The company also needed to assess whether it was vulnerable to a union organizing effort. Fortunately, the company was able to resolve the matter quickly without having to reinstate the employee, admit any liability, or produce and information. It had to pay the employee some money, however, and also had to post a (large) NLRB settlement notice on its employee bulletin board.

This is a true story that involved a local non-union company in Virginia. It illustrates how a non-union company can unwittingly become trapped in the NLRB’s web. In this case, company management had what it believed to be an insubordinate and belligerent employee, who was employed at will and did not belong to any protected classes.

They were surprised to learn about the NLRB’s aggressive pursuit of PCA cases on behalf of terminated employees. (See While it is self-serving for me to say, it is always wise for an employer to consult with experienced employment counsel before taking adverse action against an employee. Please contact me or any member of Gentry Locke’s employment law group if you have any questions about the NLRB’s activities or if you want to make sure your company remains union-free.

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