Attorney Cochran Confirms That Public Employer Cannot Prohibit Talking to Co-Workers About Benefits

Most public employees in Massachusetts have a right to seek benefits under collective bargaining agreements and to discuss their efforts with co-workers. Workers who do so are termed to have engaged in "protected, concerted activity." That means an employer is prohibited from intimidating, discriminating or retaliating against an employee for exercising their rights under a contract or under the law.

In this case, a state worker sought call-back pay benefit under the contract negotiated by SEIU Local 509. Her superior was upset about the request and reluctantly agreed to seek approval. He told the worker, "I do not want you to speak about this with anyone outside this office." This edict tried to stop the worker from allying with her co-workers and from enlisting the aid of Local 509.

Local 509, represented by Attorney Tod Cochran, responded by filing an unfair labor practice charge at the Massachusetts Department of Labor Relations. A DLR Hearing Officer agreed that the boss' statement was illegal. Such a statement, wrote the Hearing Officer, could reasonably inhibit a worker from exercising rights under the law or under the contract, and could reasonably intimidate a worker from getting support of co-workers or her union. It does not make a difference that the worker was not actually intimidated, given that she spoke with colleagues after the meeting. The state collective bargaining law is not concerned with how the worker actually feels upon receiving an unlawful order. An employer should not be able to evade liability simply because the worker has a thick skin, or, as in this case, is daring enough to violate a supervisor's order.

The Hearing Officer ordered the state to post notices to employees represented by Local 509 acknowledging that it violated the Law, including electronically, if circumstances permit.