NLRB Defines Insubordination Differently than the Rest of Us

NLRB caselaw (covering both union and non-union workforces) has a different definition of what insubordination means than most managers and business owners.

Almost weekly I am told of an employee disciplined or terminated for insubordination for slinging vulgarities at a supervisor.

When I’m not wearing my labor lawyer hat, I agree, the person acted insubordinately. But the NLRB will usually rescind the discipline and/or reinstate (with backpay) the foul-mouthed employee.

The latest example of this that I just came across is Cadillac of Naperville, Inc., 371 NLRB No. 140 (Sept. 22, 2022).

There, the employer terminated an employee member of the union’s bargaining committee for insubordination after he yelled a derogatory term at the owner.

As it usually does, the NLRB determined the behavior was “the utterance of a single derogatory term…” and use of such language by both sides was common. Also, the employer did not have a policy prohibiting foul language.

I call this the “goose and gander” rule. If it’s good enough for the goose, it’s gotta be good enough for the gander. Meaning, if an employer wants to discipline or terminate for foul language, it must do so with each instance of foul language – not just when it’s upset with a certain employee.

Most workplaces allow foul language. If yours does, then it’s extremely difficult to discipline or terminate for using foul language.

If your workplace does not permit foul language, common sense says discipline or termination needs to occur every time foul language is uttered. But don’t do that. First, it is nearly impossible to do that, and you must be consistent. Second, the NLRB does not like these types of “civility” policies. Third, there is NLRB case law that says an “excited exuberance” is lawful.

Certainly there are times when an employer can discipline or terminate because of words said by employees – but those times are rare and require a close legal analysis before doing so.