Labor Relations Fundamentals for Community College Districts

PERB has found that employee criticism of a supervisor on employment-related subjects is protected when its purpose is to advance the employees’ interests in working conditions. 69 This protection extends to speech that is uncomplimentary to the employer, and even to speech containing inaccuracies and exaggerations. 70 The NLRB has determined that a policy against employee statements that "damage" the employer violates the NLRA because it potentially stifles the "concerted activity" the Act protects. 71 The NLRB has also applied such protection vigorously to employee posts on Facebook and other social media. 72 However, speech that is “opprobrious, flagrant, insulting, defamatory, insubordinate or fraught with malice” so as to cause “substantial disruption” or material interference” loses its protection. 73 b. Employer Speech Another basic right that can lead to controversy is the limit on employer speech. Supervisors and managers are prohibited from making comments during an organizing election that imply that the campaign is futile. While employers are permitted to provide factual information, they must refrain from any threat of retaliation for union activity. For example, management’s representatives cannot make assertions that unionization will result in lower wages and loss of benefits, or that the union is a “menace” that should be eliminated. The U.S. Supreme Court has found that the National Labor Relations Act (NLRA) embodies a “First Amendment right of employers to engage in non- coercive speech about unionization,” and thus expressly precludes regulation of speech about unionization, so long as the communications do not contain a “threat of reprisal or force or promise of benefit.” 75 Another example, during a United Auto Worker (UAW) organizational campaign, an employer displayed a “UAW Wall of Shame” banner, beneath which it placed a number of paper tombstones, each of which had “RIP” with the name of a UAW-represented plant that had closed. Every couple days, the employer would add another tombstone bearing another closed UAW-represented plant. On the day before the election, the company posted a tombstone with the name of the employer on it and a question mark in the middle. 76 The National Labor Relations Board (NLRB) found that the clear implication of the “Wall of Shame” was that the fate of the plant would be thrown into question if, and only if, the employees chose union representation. 77 In order for the company to have avoided a violation of the NLRA, it would have had to offer objective facts as the basis for its belief that, for reasons beyond the company’s control, selection of the UAW as the employees’ bargaining representative could cause the closure of the plant. 78 Instead, the employer remained mute regarding the basis for its assertion, implying that the employer would retaliate if the employees chose the UAW as their collective bargaining representative. 79 As discussed above, the wearing of union buttons or insignia is a protected right, absent special circumstances. 74

Labor Relations Fundamentals for Community College Districts © 2019 (c) Liebert Cassidy Whitmore 18