PROTECTED SPEECH AND THE RIGHTS OF PRIVATE SECTOR EMPLOYEES: THE DISLOYALTY DOCTRINE AND DISPARAGEMENT OF THE EMPLOYER

A crucial area of labor law that is often misunderstood is the extent employees have to publicly speak out about the conditions of their employment.  This article discusses the guidelines and boundaries for protected speech that the National Labor Relations Board (“NLRB”) and the courts have promulgated under the statutory authority of the National Labor Relations Act (“NLRA”).   These laws regarding protected speech apply to all private sector employees—union and non-union alike.

In a companion article, I will discuss protected speech issues in the context of postings on social media sites such as Facebook and Twitter.

A.         NLRA SECTION 7 (29 USC sec. 157):

 The rights of private sector employees are principally set forth by Section 7 of the NLRA:

“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.”

A violation of Section 7 rights is prosecuted through the bringing of an Unfair Labor Practice (“ULP”) Charge with the NLRB alleging a violation under Section 8 of the NLRA.  Principal rights protected by Section 7 are:

–   Forming or attempting to form a union

–   Joining a union, whether or not recognized by the employer

–   Assisting a union to organize employees

–   Going on strike

–   Refraining from activity on behalf of a union

–   Concerted activities such as speech and picketing

B.         NLRB STANDARD FOR DETERMINATIONS OF PROTECTED SPEECH

In the case of NLRB v. Local Union No. 1229, IBEW (Jefferson Standard Broadcasting) (1953) 346 U.S. 464, the United States Supreme Court developed a three prong test for determining protected employee speech.  Under this test, employee disparagement of the employer or its products is protected under section 7 of the NLRA if it: (1) occurs in the context of an ongoing labor dispute; (2) is related to that dispute; and (3) is not egregiously disloyal, reckless or maliciously untrue.

If any of the above elements are missing, the conduct risks losing its protected status thus putting the employee at risk for discipline or termination.  If the conduct is found to be protected, it is a violation of section 8 (a)(1) of the Act (29 USC sec. 158 (a)(1))—making it unlawful for the employer to interfere with, restrain or coerce employees in the exercise of their protected rights and making illegal any discipline of the employee for engaging in the conduct.

1.  DOES THE COMMUNICATION OCCUR IN THE CONTEXT OF AN ONGOING LABOR DISPUTE?

Whether the speech or communication occurs in the context of an ongoing labor dispute depends on the particular facts and circumstances involved in the dispute. Examples of how this issue has been decided are found in the following cases:

In Emarco, Inc. (1987) 284 NLRB 832, the employees went on strike after the company that had been historically late in making payments to the employee health and welfare fund failed to make a payment that was 5 months delinquent. The employees did not return to work until the delinquent payment was made by employer.

After the conclusion of the strike, 2 employees who had not yet been reinstated to their jobs made disparaging remarks about their employer to a third party contractor, saying that: “these people never pay their bills,” The employer “can’t finish the job” and “is no damn good,” “this job is too damn big for them. . . .It will take a couple of years to finish the job.“  The employees also referred to the company’s owner as “no damn good” and as “a son of a bitch.” As a result of the remarks, the employer refused to reinstate the employees.

In Emarco, the NLRB found that the speech was protected and that the employer acted unlawfully in refusing to reinstate the employees.  Even though the strike had ended, the NLRB held that the speech occurred in the context of an ongoing labor dispute because the employer had been so repeatedly late over a period of several years in making its required fund payments.  Consequently, the Board found that under section 2(9) of the NLRA (29 USC sec. 152 (9)) which defines a “labor dispute” as: “any controversy concerning terms, tenure or conditions of employment,” that the settlement of the strike was not, by itself, indicative that there was not an ongoing labor dispute at the time the employees made their comments.

In George A. Hormel & Co. v. NLRB (1992) 962 F.2d 1061, the federal court of appeal came to an opposite conclusion.  In Hormel, workers were on a nation-wide strike for over a year.  The strike included active boycotts against Hormel products. After the strike was settled and a new contract  ratified, an employee who was a major dissident both before and during the strike, publicly participated in a parade and rally in support of a continued boycott against Hormel products. The employee was fired after Hormel learned of his presence at the rally.

 

The court in Hormel found that the fired employee’s active and public participation in the pro-boycott rally, which occurred after the settlement of the strike and his reinstatement to employment, was not permissible conduct as it did not occur in the context of an ongoing labor dispute.  Therefore, the court found that Hormel had not violated the NLRA in terminating his employment.

 2. IS THE SPEECH OR CONDUCT RELATED TO A LABOR DISPUTE?

 In Springfield Library & Museum (1978) 238 NLRB 1673, the NLRB declared that the determination of whether speech or conduct is related to a labor dispute is: “whether or not the comments are related to concerted or union interests.”  In other words, in order for the speech or conduct to be considered related to the dispute, it does not have to duplicate the specific arguments raised in the labor dispute, or even have to include discussions of the dispute.

Under the NLRB test, the emphasis is on showing a relationship to some legitimate union or concerted interest, not necessarily the interest involved in a specific dispute that might be occurring at that time.  However, protection may be lost where the speech or communications have only an attenuated relationship to the employees’ terms and conditions of employment. The following cases are examples of how this test has been applied:

In Riverbay Corp. (2004) 341 NLRB 255, the employer had a rule prohibiting employees from taking actions to influence board of directors’ elections.  Several employees violated this rule by actively taking part in an election campaign.  The NLRB held that the employees’ conduct was not related to their union interests and therefore the rule did not violate the NLRA because it did not chill the employees’ Section 7 rights.  Therefore, the Board ruled that the employer had not acted unlawfully in firing the employees.

In Damon House (1984) 270 NLRB 143, employee drug counselors wrote a detailed letter to the employer’s Board of Directors and spoke with program residents criticizing a number of the Executive Director’s actions and urging his removal.  The counselors were subsequently terminated.  The NLRB found that even though some of the criticisms made by the counselors were related to some legitimate job concerns, “the overwhelming  majority  of  concerns  expressed in  the  letter  were  not  directly  related  to job  interests,”  and therefore not protected under the act.

In contrast to the above cases, the NLRB found in Cordura Publications, Inc. (1986) 280 NLRB 230, that the employees’ actions were protected.  In Cordura, a group of employees wrote a letter to Chairman of the Board of the company that detailed specific problems and contained proposals for correcting these problems concerning the employees’ terms and conditions of employment.  The NLRB found that “the thrust of the letter is the employees’ proposal for increasing the professionalism of their jobs,” and therefore was protected as speech relating to concerted interests; the terminated employees were ordered reinstated.

3. IS THE SPEECH OR CONDUCT EGREGIOUSLY DISLOYAL, RECKLESS OR MALICIOUSLY UNTRUE?

This final element tends to be the most ambiguous and controversial of the 3 factors used to determine if employee speech is protected.  In Springfield Library & Museum (1978) 238 NLRB 1673, the Board gave some insight into this standard, stating that:  “federal law gives a union license to use intemperate, abusive or insulting language without fear of restraint or penalty if it believes such rhetoric to be an effective mans to make its point.” In Springfield Library, the NLRB also held that it is the employer’s burden to show “that the words were published with knowledge of their falsity or with reckless disregard of whether they were true or false.”

Review the following scenarios and see if you can determine whether they were found to involve protected or unprotected speech:

 a.  BEWARE PAINT SUBSTITUTE

THE EMPLOYEES OF THE PATTERSON-SARGENT COMPANY IN CLEVELAND WHO MANUFACTURE PAINT UNDER THE BRAND OF B. P. S., WERE FORCED ON STRIKE BY THE COMPANY. AS A RESULT, THERE IS NOT BEING MANUFACTURED ANY PAINT AT THE PATTERSON-SARGENT COMPANY IN CLEVELAND BY THE WELL TRAINED, EXPERIENCED EMPLOYEES WHO HAVE MADE THE PAINT YOU HAVE ALWAYS BOUGHT.

THIS IS A WARNING THAT YOU SHOULD MAKE CERTAIN THAT ANY B. P. S. PAINT YOU BUY IS MADE BY THE REGULAR EMPLOYEES WHO KNOW  THE FORMULAS AND THE EXACT AMOUNT’ OF INGREDIENTS TO PUT INTO PAINT. IF YOU SHOULD HAPPEN TO GET PAINT WHICH IS MADE BY ANY OTHER THAN THE REGULAR, WELL TRAINED, EXPERIENCED WORKERS, IT MIGHT NOT DO FOR YOU WHAT YOU WANT IT TO DO. IT COULD PEEL, CRACK, BLISTER, SCALE OR ANY ONE OF MANY UNDESIRABLE THINGS THAT WOULD CAUSE YOU INCONVENIENCE, LOST TIME AND MONEY.

STOP! THINK ! IS IT WORTH YOUR WHILE TO RISK SPENDING YOUR GOOD MONEY FOR A PRODUCT WHICH MIGHT NOT BE WHAT YOU ARE ACCUSTOMED TO USING? YOU WILL BE INFORMED WHEN YOU CAN AGAIN BUY B. P. S. PAINT WHICH IS MADEBY THE REGULAR EMPLOYEES IN CLEVELAND.

In Patterson-Sargent Co. (1956) 115 NLRB 1627, the above leaflet handed out to public by striking workers was found to be unprotected speech.  The NLRB found that “the handbill was intended to, and did, publicly impugn the quality and usability of the Respondent’s product. . . Statements made by employees to the public which deliberately cast discredit upon their employer’s product or service are no less disloyal and a breach of confidence because they are truthful.”

b.  Dear  Sir:

The  Housekeeping  Dept.  feels  that  it  is  time for  you  to  be  made  conscious  of  the  fact  that this facility  is  deteriorating.

The   Professional   Porter   Service   Company has  done  nothing  to  enhance   the  interior  of this  facility.

The  Professional   Porter   Service   Company has  taken  everything   away   from  the   Housekeeping  Dept.  that  is  needed  to  clean   the  facility  with.  The  products  that  are  used   now have  been   diluted   with   so  much   water  that [they  are]  no  good.

The  Professional  Porter  Service  Company  is making  the  hallways,  the  dining  area,  and  the day-room  floors  look  good,  but  the  floors  are not really  being  cleaned.

Now  on  top  of  all  the  dirt  and  the  germs, Professional   Porter   Service   Company   is   demanding  that  the  maids  do  the  porter’s  work, and  the porters  do  the maid’s  work.

Mr.  Rothman,  this  is  very  humiliating  to  the Housekeeping   Dept.,   and   to  the   facility.   So when  you  are  in  the  facility  again,  just  take  a good  long  look  at  what  the  Professional  Porter Service  Company  is doing  to  your  facility.

Again,  we  feel  that  it  is  our  duty  to  inform you  of the  situation  before  it  is  too  late.

In Professional Porter & Window Cleaning Co. (1982) 236 NLRB 136 this letter was found to be an example of protected speech.  The NLRB found that there was “no  evidence  of a  deliberate  intent on  (the employee’s)  part  to  disparage  Respondent’s  product or to  undermine  its  reputation.”

c.  JEANS   QUESTIONAIRE   [sic]

1.   Should jeans  suits  be  allowed  to  be  worn  by  (a) supervisors,  (b) secretaries, (c)  the  director, (d)  administrators?  —

2.     Are jeans hats  more  appropriate  when  worn  on the heads of (a)  administrators,  (b)  secretaries, (c) janitors, (d) directors,  (e) supervisors?  —

3.    Do  jeans  jackets   look   better   on   (a)   dogs,   (b) directors,  (c)  administrators,  (d)  all  of  the  above,  (e) none  of the above? —

4.     When   worn   in   the   reception    area,   are  Jeans coveralls  more  attractive  on (a)  attorneys, (b)  secretaries,  (c)  supervisors, (d)  nobody  in  the whole  world?  —

5.   Should jeans  be  worn  in  the  office  of the  AAA  by (a)  children,  (b)  monkeys,  (c)  directors,  (d)  administrators,  (e)  electricians,   (f)  letter  carriers, (g)  claimant’s attorney,   (h)  respondent’s   attorney,  (i)   claimant,  (j) dogs,  (k)  grownups, (l)  the  President, (m)  temporary  help,  (n)  part  time  help, (o)  permanent  part time  help, (p)  supervisors,  (q) janitors,  (r) anyone  from  the firm  of Sommers,  Schwartz, Silver,  (s)  nobody  from  D.A.I.I.E., (t)  reporters,  (u)  Italians,  (v)   Xerox  sales representatives,  (w)  witnesses,   (x)   secretaries,  (y)   some   of  the above,  (z)  all of the above? —.

IF RETURNING THIS  QUESTIONAIRE [sic]  IS  TOO INCONVENIENT,   PLEASE  CALL   AND   I   WILL  BE   GLAD   TO TAKE  YOUR  PREFERENCE  OVER THE  PHONE.

In American Arbitration Ass’n (1977) 233 NLRB 71, the above sarcastic questionnaire mailed out to AAA’s clients to protest a dress code was found unprotected as it “constituted disloyalty to and disparagement of the employer’s judgment.”

C.  CONCLUSION 

Employees should not be afraid to exercise their rights to engage in speech or other lawful conduct even when the speech or conduct may be critical of their employers.  In doing so, however, it is essential to keep in mind the standards that the NLRB and courts have laid down to determine when such speech and conduct is lawfully protected.  Remember that if the speech or conduct is not found to be protected, employers have the unfettered right to discipline and terminate employees.  Thus be sure to follow these steps:

 

  •  Before publishing or engaging in any speech or communication concerning your workplace or conditions of employment, seek advice from your union or another trusted source such as a labor law attorney on whether it appears to be protected.
  •  If you are publishing written remarks, review them carefully to make sure they comply with the laws on protected speech.
  •  If you have made verbal comments, make an accurate contemporaneous record of what you have said.
  • If you believe your speech or communication may lead to a problem, inform your union immediately so that precautionary steps can be taken as soon as possible.
  •  If you are questioned on speech issues by management, do not make any statements or agreed to be interviewed without asking your union for assistance.  If you are in a non-union workplace, consult with an attorney before speaking with management.

 

 

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