Do you badmouth your boss behind his back? If so, then we have some good news for you: you might not lose your job if your boss finds out.
At a shipping company in California, a few package sorters attempted to unionize their fellow employees. Their bosses claimed that they heard these unionizers “badmouthing” them while attempting to convince their fellow employees to join the union. As a result, one of the unionizers was demoted, and threatened with further discipline if he continued to allegedly badmouth his bosses.
The union filed a complaint, alleging that the employer interfered with the unionizer’s free speech rights under the National Labor Relations Act (NLRA). Under that law, an employee has a right to discuss unionizing with other employees. If the employer prevents or disciplines an employee for discussing unionization, demonstrating his support for unionization, or engaging in any activity that might encourage others to unionize, the employer will be in violation of the law. This might require the employer to pay the employee back pay and provide other relief.
The judge found that the employer violated the NLRA by disciplining his employee for badmouthing him while discussing unionization. The judge held that the employee had a right to badmouth his bosses if he was doing so to promote unionizing.
Interestingly, the judge also discussed whether the employer created the impression that it was engaged in surveillance of its employees while they were unionizing. While the judge found that the employer did not, he implied that if an employer attempted to spy on employees to discover whether they were discussing unionization, they would be violating the NLRA.
The lesson to be learned from this case is that employers should tread carefully when dealing with employees who are attempting to unionize. An employer does have the right to prohibit employees from talking about non-work issues in work areas during work hours. However, the employer must apply this policy uniformly. If the employer permits employees to discuss any issue during work except unionization, this will violate the NLRA.
As we have discussed previously, the judges administering the NLRA have been very pro-union, consistent with the Obama Administration’s position on the issue. That might change with the inauguration of a new President in 2017. Until then, employers should deal with employee unionization issues delicately. If you are dealing with these issues, we suggest that you contact an experienced attorney.