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.