BLACK ARMBANDS / FREE SPEECH

GB2003LABOR

We are a unionized company that deals with the public on a daily basis. We recently had an employy discharged over an accident. (The case is pending in the grievance procedure.) Numerous employees, supposedly showing solidarity for the discharged employee, began wearing black armbands. I took the stance that we would not allow the armbands because we have customers at the workplace and on the street daily who will then think we have labor unrest. We do have a past history of this in 1996 and actually lost some business because we didn't put a stop to it right away.

We subsequently terminated an employee who refused a direct work order to remove the armband. His claim is that we discharged him for expressing his opinion of the other discharge. Our discharge is a violation of his "free speech". Doesn't the employer have some rights in a case like this to prevent a hazard to their business as a result of employees acting in this manner?

I would like your thoughts.

Thanks

Don D

I'm afraid you're up the arbitration creek without a hope. Did you say you lost business once 'because you did not put an immediate stop to labor unrest'? One doesn't put a stop to labor unrest by demanding that it come to a halt. That's beggin for NLRB intervention, as was your insistence that the arm band be removed. I think you had better be planning to bring the ee back to work following step three of your grievance or arbitration, whichever comes sooner. Concerted and protected activity under the NLRA in my opinion includes the bargaining unit members' right to peacefully express their common opinions, including comraderie. Your choice here may well become letting the public either see an armband or two or letting them see a picket line.

njjel

Unions tend to do this - it's their way of making a point. In fact, it's probaly one of the nicer ways! Currently at my office we have a union protest going over placement of one of our staff members and all office doors have ribbons on them stating their disagreement w/management. However, I would not take down the ribbons (or remove the arm bands). You have a grievance in process, let it run its course and then see what occurs.

ritaanz

If I were your customer, I would not give it a second thought if I saw a black arm band on your employee/s. Nor would I assume you have labor problems. From where I come from, the black arm band means a death of someone important to the person wearing it. Let it be.

vmiller MO

Don D has expressed many of the problems that you face in this situation. Let me add a few other thoughts.

1. The constitutional right to free speach is a right against Government interference. It does not run to private employers.

2. The NLRA protects "concerted activity." The employees are engaged in concerted activity. However, not all concerted activity is "protected" activity. If you have an uniform rule for those employees who meet the public and you enforce the uniform rule consistantly, then you can take the position that the employees are violating the rule. However, if you don't have a rule or just implemented the rule after the employees began the armband display, or if you are disparately enforcing the rule, then the NLRB will take the position that your action is designed to interfer with with the employees'right to engage in "protected concerted activity" or "union activity."

3. Your contract requires "just cause" for discipline or discharge. This requirement is in place whether your contract explicity sets out such language or in implied. If you have a rule as discussed in #2 above, then you have a "reasonable" change of prevailing in an arbitration--ok, you may get the employee back, but without backpay. If you don't have a rule or disparately enforce the rule, your changes of prevailing in an arbitration are almost nil.

4. You may want to "discuss" this situation with your Business Agent and put some heat on the union about this action violating the "spirit" of the grievance and arbitration provisions of the contract and how it is hurting both the management and the employees by trying to involve the public in this dispute. I would point out to the union what would happen if the armband display drives off customers.

5. I also suggest that you consult with an attorney in developing a response to this display. Yes, I know that your management believes that lawyers cost the company money, but so do consultants, IT techs, etc.

Good luck.
Vance Miller
Editor, Missouri Employment Law Letter
Armstrong Teasdale LLP
(314) 621-5070
[email]vmiller@armstrongteasdale.com[/email]

GB2003LABOR

I appreciate everyone's input on this issue.

As far as the customer's view, we are in a very competitive environment where there are only a few unionized employers left in our industry. The non-union competition is taking much of our business. Customers look at labor unrest as a problem and then tend to move to those non-union companies. I asked an employee who was wearing the armband what would they say to a customer who might ask the question. They replied that they would say it is in solidarity for a fallen brother. If the customer asked if someone had died they would reply "no, the company wrongly fired him!" This again would show that unrest and raise the fears of customers who have been stung many times.

Vance, your comment about the just cause issue is interesting and I've heard it many times before. Unfortunately under our contract we do not have arbitration. Both sides have access to economic recourse when the case gets deadlocked to the top. I have also talked to the business agent and the President of the Local. They agree with me that the employees should not wear them. As a matter of fact as soon as I called the President he sent an agent out here to "recommend" to the employees that they take the armbands off. One employee who is trying to make a point refused and that is the employee that is now discharged for the refusal.

I have also contacted our legal counsel regarding this issue and of course I'm waiting for a reply from them.

Thanks again for all of the input.