What acts constitute concerted activity has been the subject of many court and labor board decisions, with varying interpretations. Just last week, in Moraine Valley Community College v. Illinois Educational Labor Relations Board, the Illinois Appellate Court for the First District issued an important decision concerning speech that constitutes concerted activity that provides valuable guidance for higher education administrators. In that case, the Appellate Court upheld the Illinois Educational Labor Relations Board’s decision that found an adjunct plaintiff was improperly terminated by a community college for engaging in speech protected by the Illinois Educational Labor Relations Act (“the Act”).
In Moraine Valley Community College, an adjunct instructor and head of the adjunct faculty union at Moraine Valley Community College (“the College”) was fired and banned from campus because she wrote a letter critical of how the administration treated adjunct faculty. In her letter, which she sent to League of Innovation in the Community College (“LICC”), the adjunct instructor identified grievances with the College, including treatment of adjuncts and that treatment’s impact on students. The adjunct instructor signed this letter as Moraine Valley Adjunct Faculty Organization’s president, and the letter was on the Organization’s letterhead. The letter also referenced Moraine Valley’s request to union leaders that they write letters to LICC supporting Moraine Valley’s reapplication to LICC’s board. In her letter, she also outlined why she did not support this reapplication, explaining that her lack of support stemmed from what she characterized as the College’s treatment of adjunct faculty as “‘a disposable resource’ and ‘a separate, lower class of people.’” Two days after sending her letter to LICC, the College fired the adjunct citing her letter as the core reason for her termination. In particular, the College asserted that the letter to LICC was “replete with misrepresentations and falsehoods” and was “disruptive and not consistent with the best interests of the College.” The adjunct instructor was also told that her future presence on campus would be treated as criminal trespass.
At the center of the parties’ dispute was whether the adjunct instructor’s letter constituted protected activity under the Act. The IELRB determined that the College violated the Act and committed an unfair labor practice because the letter was concerted activity and the College could not terminate her for writing the letter. Under the IELRB ruling, the College was required to reinstate the adjunct and provide her back pay with interest.
On appeal, the Appellate Court agreed with the IELRB finding that the letter qualified as a concerted activity because it discussed the issues experienced by the adjunct faculty as a group, not simply by the adjunct instructor as an individual. The Appellate Court found that a number of the matters raised in the letter related to grievances already filed and rejected or were those in dispute at the time, namely, surrounding the Affordable Care Act and adjunct faculty members’ reduction in hours/benefits. Nor was the letter merely a public venting of personal grievances, but rather was an attempt to shed light on the employment conditions experienced by the adjunct faculty members and to mobilize change by establishing the College’s lack of innovation in stifling the growth of the adjunct faculty. What’s more, the letter was written by a union official in furtherance of union’s collective activities, thereby demonstrating there was a genuine labor dispute between the parties. In particular, the letter referenced that adjunct faculty were faced with limited resources, below par pay and benefits, the disparate treatment as compared to the full-time faculty, and the statements made in the letter by the adjunct instructor regarding the fungibility of the adjunct faculty, all had a chilling effect on the union membership in terms of fearing their job security. In short, the Appellate Court confirmed that given the labor dispute between the union and the College, the adjunct instructor’s letter constituted “concerted” activity that was protected by the Act.
This case is significant in that it reaffirms that employees do enjoy protection for speech derived from a labor dispute. In particular, the case reaffirms that protection under the Act is predicated on whether (1) the speech or communication clearly indicates the existence of a labor dispute with the employer; and (2) the critical statements are not maliciously untrue. When an employee publicly addresses collective grievances, concerns or criticisms on behalf of a union, such speech generally constitutes a matter of public concern and is concerted activity that prohibits an employer from taking adverse employment action.
Employers should always take a long hard look before disciplining an employee for statements that are made on behalf of a group of people. Depending on the content of those statements, that might trigger protection as concerted activity, which is protected by law. Additionally, as this decision shows, public sector employers should think twice before taking adverse employment actions against an employee merely because the particular speech is critical and unflattering, especially during a labor dispute. It also shows that when speech is a byproduct of a labor dispute, the Illinois Educational Labor Relations Board will most likely intercede in favor of employee rights.
