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Wearing AMFA Buttons, "Protected Union Activity"
Jun 01, 2016

Wearing AMFA Buttons,

"Protected Union Activity"

Re: Protected Union Activity

Dear Mr. Venckus (SWA):

You sent an e-mail to all four AMFA Southwest Air Line Representatives (“ALR”), on

May 24, 2016, in which you indicated Southwest Airlines (“Southwest” or “Company”)

“recently noticed some Maintenance Employees wearing buttons referencing our recent

negotiations.” In addition, you conveyed the Company’s position that the “wearing of

these buttons is not authorized and violates our policy.” In closing, you requested that

AMFA, through the four ALR’s, “help stop the usage of these buttons.” I have been

asked to respond to your e-mail on behalf of AMFA and the Southwest ALR’s.

AMFA cannot accede to the Company’s request to “help stop the usage of these buttons,”

because to do so would cause the Association to be complicit in the violation of our

members’ federally protected rights under the Railway Labor Act.

It is well established under both the Railway Labor Act and the National Labor Relations

Act that employees have a statutory right to communicate their views related to working

conditions and unionization. An integral part of this protected free speech is the right to

communicate their views through buttons, lanyards, and t-shirts. Republic Aviation Corp.

v. NLRB, 324 U.S. 793, 801-803 (1945); Skywest Pilots ALPA Organizing Committee v.

Skywest Airlines, Inc., 2007 U.S. Dist. LEXIS 48316 (N.D. Cal. June 27, 2007); Scott v.

American Airlines, 488 F. Supp. 415 (E.D.N.Y. 1980); Adams v. Federal Express Corp.,

470 F. Supp. 1356, 1362-63 (W.D. Tenn. 1979)(“employees have the right to visibly

demonstrate their support or opposition to a particular bargaining representative absent

some exceptional reason for curtailing such expression.”). This free speech right protects

not only the wearing of a t-shirt and buttons bearing a simple union acronym, but also tshirts

and buttons communicating pointed messages protesting an employer’s policies or

negotiating tactics. See Southern California Edison Co., 274 N.L.R.B. 1121 (1985)

(finding button bearing slogan “Stick Your Retro” to be protected speech and explaining

that in order “to lose the protection of the Act, the slogan must be offensive or severely

disparage the employer.”).

You referenced a unilaterally promulgated Company policy in support of your position

that the “wearing of the buttons is not authorized…” However, the Company’s policy

cannot abridge the employees’ rights under the Railway Labor Act and does not override

the express terms of the parties’ collective bargaining agreement, which provides that no

covered employee “will be interfered with, restrained, coerced or discriminated against

by the Company … because of membership in or lawful activity on behalf of the Union.”

(Article 1, § 2). Therefore, it is AMFA’s position that any order to employees to remove

the union buttons not only contravenes federal law, but also constitutes a violation of the

parties’ collective bargaining agreement. See U.S. Steel Corp., 121 LA 1255 (Das 2005)

(employer violated clause in collective bargaining agreement prohibiting discrimination

against union members when it ordered employees to remove from their helmets and

other equipment union sticker stating “No one fired on my shift today!”).

In addition, arbitral decisions under the RLA have consistently sustained grievances,

ordered reinstatement and issued make-whole relief in instances where an employee was

disciplined based on the exercise of his RLA-protected free speech rights. American

Airlines, Case D-M-1018-04 (Angelo 2005) (reinstatement with make whole relief for

mechanic unlawfully discharged for wearing pro-AMFA t-shirt and refusing order to

remove it or turn it inside out). Furthermore, as explained by Arbitrator Angelo in the

attached American Airlines decision, any unlawful order issued by Southwest

management to remove the buttons at issue would not be subject to the work now, grieve

later doctrine:

With regard to the “work now, grieve later” doctrine, the rule does not

apply where, as here, a lawful order was not given. The obligation to obey

first arises once a lawful order is given. Where, as here, the order is not

lawful, there is no obligation to obey and, the right to grieve instead never

becomes an option.

American Airlines, Case D-M-1018-04 at 20-21.

AMFA respectfully declines your request to assist you in the violation of our members’

rights both under the RLA and the contract by “help[ing] stop the usage of these buttons.”

Moreover, AMFA will use all legal means necessary to address any actions by the

Company related to this issue that contravene federal law or the terms of the collective

bargaining agreement.

Sincerely,

Lucas K. Middlebrook, Esq.

Click to Read/Print PDF File

Click to Read SWA, ALR's Response Letter


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AMFA Local 32
1403 W. 10th Pl., Suite B-116
Tempe, Arizona 85281-5257
  480-420-6919

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