Union Employee Speech and the Doctrine of Disloyalty

Summary: Although union representatives and members have the right to work together for mutual benefit and protection under the National Labor Relations Act, there are some limitations on that right. As NATCA Federal Contract Tower (FCT) reps become more vocal and active, it is important to keep in mind that, in some circumstances, employee speech is not protected by the Act. In particular, the courts and the NLRB have found that there is a “duty of loyalty” due to an employer, and that employee and union speech can breach this duty and void the protection of the Act. This memorandum will attempt to give FCT FacReps a roadmap to follow in avoiding the pitfalls of this doctrine.

The Law: The seminal case on this issue is Jefferson Standard Broadcasting, 346 U.S. 464 (1953). In Jefferson Standard, the Supreme Court found that the employer had just cause to discharge television station employees engaged in hand-billing which disparaged their employer. The Court found that the handbill, which criticized the employer’s programming and suggested that the employer was treating the city as “second class,” was not protected in that it made no reference to the union, collective bargaining, or a labor dispute. The Court went so far as to state: “There is no more elemental cause for discharge than…disloyalty to (the) employer.” 346 U.S. at 472.

Disclosure of “privileged” information is among those activities the Board and the courts have found to be “disloyal.” In IBM, 265 NLRB 638 (1982), the Board found that employees who revealed company wage data to the public in violation of company policy were not protected by the Act and upheld their discharges. Conversely, the Board has held that employees could not be required to “take their complaints to the employer and only the employer” in the context of child-care workers who had voiced complaints and concerns to parents. Kinder-Care Learning Centers, 299 NLRB1171 (1990).

Another area of concern is “disparagement” of the employer. In this area, the case law is unsettled. For example, the Fourth Circuit upheld a Board decision finding that a nurse’s statements protesting wages and staffing conditions at a hospital were protected because they addressed “protected concerted activity in progress” unlike the statements made in Jefferson Standard Community Hosp. 538 F.2d, 607 (1975). On the other hand, distributing a flyer by an employee to his employer’s customers regarding the employer’s investment and business practices and effects on quality of service was found to be an unprotected activity where the flyers did not reference an ongoing labor dispute. American Golf Corp. 330 NLRB 1238 (2000).

Bottom Line: There is a plethora of case law on these issues, but in general the rule appears to be that if a union representative or an employee references some kind of ongoing labor dispute, the union itself, negotiations or other interactions between the union and management, then the speech is protected. Therefore, it is advisable that FCT reps reference the union in some manner when speaking to anyone outside the company about company issues. Ideally, any communications will include phrases such as:

• “We are having a dispute with the employer over X.”
• “The union is trying to get the employer to change Y.”
• “The union is in negotiations with the employer to achieve Z.”

Also, remember to avoid especially “disruptive, profane or vulgar” behavior in the exercise of protected activity. A number of courts have found that extreme behavior, including abusiveness and vulgarity towards managers, can remove the protections of the Act from otherwise protected speech.

As always, if you have any questions about what you can or cannot say, please consult with your FCT ARVP, RVP, or LR Representative for further guidance.