Disrespectful Behavior Can Be Protected Activity

State of California (Department of Corrections & Rehabilitation) (2012) PERB Decision No. 2282-S (Issued on 8/21/12)

This case is a good reminder of what PERB considers to be protected activity when it comes to the behavior of union representatives. The law actually applies to both union and management personnel equally, but since unions don’t have the ability to ‘discipline’ management, these situations almost always arise of the context of management wanting to discipline a union representative for his or her behavior. In this case, the behavior—as far as “bad” behavior goes—was actually pretty mild. The union representative was in a Weingarten-type meeting representing an employee who was receiving a Letter of Instruction (LOI). During the meeting the union representative tried to make some statements and was told by one of the management representatives that she could not interject. In response, the union representative put her hand up towards the management representative who was speaking and told him that she was not speaking to him. There was more similar type behavior. The union representative was then issued a LOI for her “insubordinate, discourteous, unprofessional, and disrespectful” behavior during the meeting.

The administrative law judge (ALJ) held that the employer committed an unfair practice by issuing the union representative a LOI. In adopting the ALJ decision, PERB affirmed its long-held principle that employee speech and conduct related to matters of representation are protected unless “found to be sufficiently opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice as to cause substantial disruption of or material interference in the workplace.” According to PERB, such a rule is justified by the nature of labor relations. Specifically, the decision states:

“We recognize that while seeking to resolve divergent and often conflicting interests, representatives of both unions and employers may resort occasionally during representational meetings to intemperate speech or less than civil conduct. It is for this reason that party representatives are afforded significant latitude in their representational speech and conduct, which serves the ultimate goal of accommodating divergent interests and resolving conflicts. Consequently stewards must be free to speak and act for the union, consistent with good faith and free of employer interference, restraint or coercion.”

Member Dowdin-Calvillo filed a separate concurrence. She agreed with the result but cautioned that this decision, “should not, however, be viewed as license for employees to use their protected activity as a shield from discipline for violating the employer’s rules with impunity.”

Comments:

I have to admit that the conduct of the union representative was fairly mild. There are many PERB cases where the speech is much more “colorful,” including the liberal use of the f-bomb. The lesson from this is that under PERB law, union representatives have a certain license to be “aggressive” when engaging in representational activities. Management representatives need to understand that when dealing with an employee acting as a union representative, it’s not a supervisor-subordinate situation; but rather the union representative has the right to come into a meeting as an “equal.” So a union representative is not being “insubordinate” by questioning the management representative (who may happen to be her supervisor).
That said, it should be remembered that the test for whether speech exceeds the bounds of protected activity can depend on: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer unfair practice. (See Atlantic Steel Company (1979) 245 NLRB 814.) Thus, while an employee may get away with using the f-bomb at the bargaining table, using the f-bomb during a normal staff meeting may be unprotected. It depends heavily on the situation. But more matter what situation you’re in, make sure you’ve considered these cases before disciplining a union representative for speech.