Your Rights as an Employee – The Concerted Activity Rule – Part 2

Note: This is a continuation of our blog post dated July 16, 2014.
Legal rights of employees regarding what an employee can or cannot say, or can or cannot do, with respect to the terms and conditions of her or his employment is a judicial minefield. While an employee has considerable latitude under section 7 of the National Labor Relations Act, this discretion is not without limits. The advice of an employment attorney like those at Kilgore & Kilgore should be sought before attempting to navigate the treacherous waters of employee and employer rights.

While employees have broad latitude in what they can say or do with respect to the terms and conditions of their employment, employers can draw the line when the communications or conduct impacts the employers’ customers. For example, employees of a New York grocery store chain became upset when the chain, which had marketed its fresh cut meats, began to sell prepackaged meats in addition to those that had been freshly cut by its meat and deli employees. Employees began wearing hats and t-shirts that proclaimed: “Don’t Cheat About the Meat!” The grocery store chain suspended these employees.

Neither the grocery store chain nor the National Labor Relations Board (NLRB) were troubled by the employees’ earlier slogans, which included, “Ask Me Which Meats Were Cut Fresh Today!” However, with its “don’t cheat about the meat” campaign, the NLRB found that the employees had gone too far. The message, the NLRB noted, went beyond the prepackaging issue and could have customers believing that the grocery store was “cheating” about its meat in more nefarious ways. he chain properly disciplined the employees who proclaimed this message.

The NLRB also sided with an employer in a case involving a New York bakery that specialized in Kosher foods. The business’ customers relied on the bakery’s assurance that all of its food products satisfied all Kosher requirements. Thus, when the employees began wearing t-shirts proclaiming that “If it’s not Union, it’s not Kosher,” the bakery demanded that the employees remove the shirts or face discipline. The NLRB supported the employer, finding that the message incorrectly sent the message to customers that some of the employer’s food may not be Kosher, compromising the very core of the employer’s business.

The Medco case (mentioned in our July 16th blog) from Las Vegas further illustrates this principle. While the federal court of appeals was unconcerned about Stephen’s t-shirt and its message, it did find merit in Medco’s concerns that Medco’s customers might be troubled by the shirt. “Especially for a firm selling a service, concern for customer’s appraisal of its employees’ attitudes seems natural. Obviously we don’t mean to suggest that employers are free to suppress employee speech in the interest of presenting a Potemkin village of intra-firm harmony, but that is quite different from trying to exclude the display of slogans that an outsider might read as sullen resentment (especially when the object of discontent is something so seemingly inoffensive as the WOW program),” stated the finding. Thus, the federal appellate court concluded that the employee, Michael, could challenge the WOW program, doing so in the presence of corporate customers was a step too far.

Moreover, an employer can reasonably expect some degree of civility in an employee’s conduct or communications regarding workplace conditions and issues. Godwin’s Maxim – a humorous (but apropos) rule of arguments – posits that the longer a discussion occurs, the probability of an analogy to Hitler or Nazis approaches one. Judicial decisions suggest that employee speech or conduct has crossed the line should Godwin’s Maxim come into play. In a noteworthy case from the late 1960s, when tensions between the United States and Cuba ran very high, an employee interrupted a plant manager’s meeting and encouraged employees not to vote to unionize. In his interruption, the employee shouted at the plant manager: “I want you to know that you are no different than Castro; Castro told the people in his country if they did not like the way he was running it to pack up and leave, and you tell people at Boaz Spinning Company if they do not like the way you are running the plant to punch out and go home.” The employee was immediately fired.

The federal appellate court was not unduly concerned about the employee’s interruptions, but comparing the plant manager to Castro went too far. It stated in its finding: “[The manager] had no difficulty in understanding that he was being likened to a Communist, and [the employee]’s fellow-employees, in describing [employee]’s remark to [the manager], remembered the remark as being ‘You are just like Castro.’ That [the manager] was ‘unwilling to hear both sides of the question’ hardly deserves casting him as an ‘industrial dictator.’”

An employee has substantial freedom concerning speech in the workplace, but this discretion is has limits, particularly when customers or others with influence over the buying decision are concerned. What an employee can or cannot say, or can or cannot do, with respect to the terms and conditions of her or his employment is a judicial minefield. Seek the advice of an employment law attorney if you find yourself the victim of wrongful discharge.

Your Rights as an Employee – The Concerted Activity Rule Part 1

Employers must use considerable caution to ensure employee rights at work when disciplining or terminating an employee for employment-related speech. A recent survey commissioned by CBS News found that only forty-five percent of Americans were satisfied with their working conditions, a modern-day low. Employers have little legal obligation to improve working conditions. And, employers can do little to stop employees from complaining about, or talking about, the working conditions at their jobs.

The genesis of this rule is the “concerted activity” clause in the National Labor Relations Act, signed into law by President Franklin Roosevelt over 78 years ago. Initially intended to protect employees who were working together to establish unions in their workplaces, this clause has been expanded to encompass a broad array of employee communications regarding working conditions, including those not involving union activity and conversations made by just one employee to a boss.

Section 7 of the National Labor Relations Act guarantees an employee the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” An employer may not discipline or terminate an employee who engages in conduct that falls within this provision. Not surprisingly, these relatively simple terms have generated decades of litigation. What constitutes “concerted” activity? What does “mutual aid or protection” mean? Courts have given employees considerable latitude in defining these terms. Among other things, Courts have held that a communication made by a single employee may constitute “concerted action,” so long as it was intended to address the “mutual aid or protection” of other employees. Moreover, what constitutes a working condition is also construed broadly.

A recent case out of Las Vegas illustrates these principles. The employer, Medco Health Solutions of Las Vegas, instituted an employee incentive program called “WOW,” under which the company selected one employee each week for recognition of his or her achievements. The recognized employee would then be memorialized on the company’s “Wall of WOW,” including a photo and brief description. This “Wall of WOW” was featured in company promotional materials, as well as in customer tours of the company’s facilities.

Not all employees were enamored with the program, however. One employee, Michael, wore a t-shirt to work one day, featuring a union logo on the front and proclaiming on the back that “I don’t need a WOW to do my job!” The employee picked a bad day to wear the t-shirt. Clients were touring the facility that day. Accordingly, Medco management told Michael to remove his shirt or be terminated. He filed a grievance, through the union, with the National Labor Relations Board.

The case wound its way through the federal administrative agency and ultimately to the District of Columbia Court of Appeals. There, the federal appellate court rejected many of the employer’s arguments that Michael’s conduct was not protected under section 7. First, Medco argued that he acted “alone,” not in “concert” with other employees. The Court disagreed, noting that protected conduct includes communications “where individual employees seek to initiate or to induce or to prepare for group action.” Medco then argued that the WOW program was not really a “term or condition of employment,” as there were no monetary incentives attached to the program, nor was any discipline imposed on anyone who did not receive a “WOW” award. Again, the Court disagreed, noting that any program intended to increase productivity fell within a term or condition of employment.

Another example of protected activity under Section 7 comes from Blue Circle Cement in Tulsa, Oklahoma. Stephen worked there and was also an ardent environmentalist. In fact, he was the local union’s “environmental” officer and a founder of a non-profit organization, Earth Concerns of Oklahoma (“ECO”). Blue Circle applied for a license to burn hazardous waste to fuel its operations, potentially releasing heavy metals into the atmosphere. Stephen opposed this. He found a Greenpeace pamphlet discussing the environmental issues relating to releasing heavy metals into the environment and photocopied the pamphlet on the company’s copy machine for distribution “to provide to persons who had no direct connection with Blue Circle.” After a plant manager discovered Stephen using the company’s copy machine for this purpose, the company terminated Stephen.

Blue Circle claimed that Stephen’s actions were not “concerted activity” on behalf of other employees, but “personal activity” in support of ECO, his non-profit environmental action committee. The United States Court of Appeal for the Fifth Circuit, however, upheld that National Labor Relations Board’s finding that Stephen was, in fact, engaging in “concerted activity” in using the company machine to copy the fliers and, therefore, that he was wrongfully terminated. The Union, the Court observed, opposed the company’s plan to burn hazardous waste. As part of its opposition, the union enlisted support from the local community beyond its membership. Stephen’s efforts, even on behalf of his personal non-profit, “were intimately connected to, and derived from, the Union’s broad-based strategic efforts.” The company should not have fired Stephen.

Employers must use extreme caution when disciplining or terminating employees who do or say anything that could be construed as addressing terms or conditions of employment. Stay tuned to our next blog, Your Rights as an Employee – The Concerted Activity Rule Part 2, in which we will discuss where employers can draw the line when the communications or conduct of employees impacts the employer’s customers.

Intellectual Property Lawsuit Settled for Kilgore & Kilgore Client – Court Grants Summary Judgment in Recent Copyright Litigation Involving Cheerleading Uniforms

The use of copyright laws to eliminate fair market competition has been stymied, at least for now. Parents know the exorbitant cost of replacing cheerleading uniforms. With this decision, hopefully there will be some price relief.

In 2012, Varsity Brands of Tennessee sued Star Athletica of Mississippi, Kilgore & Kilgore’s client. When Star Athletica entered the cheerleading uniform replacement market, Varsity Brands sued for copyright infringement on its cheerleading uniforms. Varsity Brands, founded in 1974, purports to be a driving force in making cheerleading into a worldwide phenomenon. Varsity Brands works with schools to promote cheerleading through training camps, televised competitions, and cheerleading uniforms it designed and manufactured. Varsity Brands probably thought it had a good case with its copyrights in place.

On an issue of first impression for the 6th Circuit, the District Court for Memphis granted a summary judgment in favor of Star Athletica against Varsity Brands on March 1, 2014. In its opinion, the Court held that the colors-and-designs component of a cheerleading uniform cannot be conceptually separated from the utilitarian object itself. Copyright protection, as a matter of law, cannot apply. The matter is currently up on appeal to the 6th Circuit on the issue of whether copyright protection applies to cheerleading uniforms.In Varsity v. Star, Varsity Brands attempted to use copyrighted pictures of cheerleading uniforms as a basis for preventing Star Athletica from offering replacement uniforms.

With this decision, Kilgore & Kilgore and its co-counsels Feldman Law, of New York, and Harris Shelton Hanover Walsh, of Memphis, insert themselves right in the middle of the fray over copyright protection for garments.

Over the years, major fashion houses have attempted to protect their designs from imitators. In July 2011, The House of Congress introduced H.R. 2511 the Innovative Design Protection and Piracy Act (IDPPPA), dubbed the “Fashion Bill.” It was intended to extend copyright protection for three years to fashion designs that “are (i) the result of a designer’s own creative endeavor; and (ii) provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.

Legislation attempting to protect fashion designs has been around since at least 2006, when H.R. 5055 was introduced. The IDPPPA, if passed, would have amended the Copyright Act to create special protection for fashion designs, but not full-on-all-the-way copyright protection. Instead, the IDPPPA provided for a three-year term of protection for original elements or arrangements of fashion designs. Those elements were supposed to be about  real innovation, like the chain inside the hem of a Chanel suit jacket that ensure it hangs properly from the shoulders, the Diane Von Furstenberg wrap dress invented in the 1970s that has been copied by millions, or the iconic Burberry trench coat. Small competitors objected to the cost of litigation associated with such a bill, which died in Committee.