It sounded like insubordination, but it was really ‘concerted action’

Supervisors faced with what they consider insubordination may be tempted to take rapid disciplinary action. And sometimes it’s justified. But here’s a case where it wasn’t:

A Las Vegas-based time-share sales company decided its relaxed dress code was too relaxed. It ordered its in-house reps, who liked to wear untucked Tommy Bahama-style shirts, to tuck ’em in.

Nobody got the memo
One rep grilled his supervisor about the change, asking why there had been no written memo. Another rep, who that day was wearing the style of shirt targeted, chipped in with “this is pretty restrictive,” and “I didn’t sign up for this crap.” The discussion was witnessed by half a dozen other reps.

The supervisor gave both men a dressing down, and issued the first rep a written warning. It was his second for “this type of behavior” – a reference to his questioning of commission changes at a previous sales meeting.

The rep appealed to the National Labor Relations Board, which ruled that his actions were the kind of “concerted activity” for “mutual aid and protection” that workers are specifically allowed to engage in under the National Labor Relations Act – whether their workplace is unionized or not. Thus, the written warning was illegal.

Takeaway for HR: Make sure line managers can distinguish legitimate questions from insubordination.

Cite: Wyndham Resort Development Corp. and Foley. No, 28-CA-22680, NLRB, 3/2/11.