A recent decision of a three-member panel of the National Labor Relations Board (NLRB) is sure to start conversations regarding the parameters for remedial reinstatement of individuals with observed performance deficiencies.

The controversial issue is whether two nursing home employees should have been reinstated – as part of the resolution of a discrimination claim –

Here are the basic facts of a case (Plaza Auto Center, Inc. and Nick Aguirre, Case 28-CA-022256, May 28, 2014) that has raised a question regarding the inherent conflict between “protected activity” under the National Labor Relations Act (NLRA) and insubordinate behavior by employees:

• Nick Aguirre became employed by Plaza Auto Center in Yuma