It Can Take Confidence (and the Law) To Challenge the Boss
A collective declaration that employees have “no confidence” in their boss has been in the news lately. It is worth noting that “no confidence” votes can be protected, concerted activity under public or private sector collective bargaining law, and, if so, the employer cannot retaliate against employees who engage in such “no confidence” votes.
Massachusetts law has long recognized that “no confidence” votes by public sector employees can be protected activity, at least where the vote is based upon terms or conditions of employment. (Public employees may have additional protections under the state and federal constitutions for actions related to concerted, protected activity). This principle was best expressed in the 1988 case City of Lawrence, in which the Executive Board of the Patrolmen’s Association successfully engineered a “no confidence” vote in the Chief. The Labor Relations Commission (now known as the Commonwealth Employment Relations Board) wrote, “Issues of contract compliance, management's attitude toward employee union activities, employee morale, and the treatment of employees injured in the line of duty are all subjects which relate directly to the terms and conditions of employment of the officers. The protected nature of the subject matter is not disturbed by the means through which the employees chose to communicate.” The Commission affirmed that it was lawful and protected to elicit support of superior officers in another bargaining unit and to distribute the vote results to the media. Because the activities were protected, the Commission found that the Chief’s commencement of an investigation into the executive board and his threat to terminate a union official were unlawful.
In the 2010 case of Town of Mashpee & Stephen R. McDonald, the Commission concluded that the complainant’s protected activity included the facilitation of public no confidence vote against the Chief and that the Town violated the law by unlawfully bypassing the complainant for promotion twice. The Town was ordered to offer McDonald a promotion to the position of sergeant, and make him whole for his losses.
Not only can “no confidence” votes be protected under law, but the publication of them is protected as well. In North Middlesex Regional School District and North Regional School District Teachers Association, a 2001 DLR case, the Association voted “no confidence” in the high school principal for disregarding the collective bargaining agreement, facilitating dismissal of a coaching staff member, altering the teaching schedule, and ignoring teacher concerns. The Association mailed its “no confidence” resolution to the school board and the media. The Commission affirmed that the Association’s “no confidence” vote and the distribution of it to the media constituted protected, concerted activities under the law. The Commission rejected the District’s argument that the Association’s actions, which mentioned topics of grievances, changed a practice or repudiated language about the confidentiality and informality of grievance proceedings.
No confidence votes can be protected activity under private sector law as well. In AFT New Mexico, a 2012 case, certain union officials sought to conduct a “no confidence” vote in the chief executive. The effort failed. Still, the Employer reacted angrily to the information, telling employees that she knew a vote occurred and tell them that they could not conduct such a vote. An administrative law judge of the NLRB concluded that the Employer violated the law.
It is important to remember that not all “no confidence” votes are considered concerted, protected activity. In the 2012 case involving American Medical Response, an employee solicited signatures for a “Vote of No Confidence” petition in opposition to the county’s renewal of a contract with her employer. She also publicly lobbied the county Board of Supervisors against the contract renewal. Her employer investigated her about her actions. The employer ultimately terminated her for not cooperating with the investigation, as it found she either refused to answer questions or provided incomplete and misleading information when she did so. The General Counsel of the NLRB concluded that the employee’s actions were not concerted, protected activity as defined by the law, because her statements reflected her concerns as a taxpayer, rather than an employee, and were not related to a labor dispute.
Unions or employees seeking to maximize legal protection for "no confidence" votes are well advised to consult your legal counsel before taking any action.
