Over the last several years, Americans have seen a frightening rise in hostility to freedom of speech. Much of that has occurred on college campuses, where we find that many students, faculty members, and administrators do not want free speech, but only speech that they agree with.
That is not, however, a new phenomenon. Since the enactment of the National Labor Relations Act (NLRA) in 1935, employers have had to operate in a legal environment that’s hostile to free speech. They can find themselves in trouble for saying things that union advocates and their bureaucratic allies don’t like.
The NLRA doesn’t directly state that employers lose the protection of the First Amendment whenever they say something derogatory about unions, or something that might make their workers less inclined to favor unionization, but its provisions operate that way. While the law is ostensibly intended to allow workers free choice between union representation or not, it stacks the deck in favor of unions and collective bargaining (without which, workers are tendentiously declared not to have “full freedom of contract”).
Under the vociferously pro-union Obama National Labor Relations Board, the assault on the freedom of employers to oppose unionization has been relentless.
As attorney Thomas M. Johnson, Jr. writes in his recent Wall Street Journal op-ed Ambushing Employers’ Speech Rights, “For many companies, the most important place to exercise speech rights is in the workplace, where management and employees communicate about the terms and conditions of employment….The current administration in particular has sacrificed the speech rights of employers and employees to advance a pro-union agenda.”
One example Johnson gives is the “quickie election” rule that the NLRB has pushed into law. One of the many points about which the NLRA has no exact language is the length of time between the calling of a union representation election and the date of the vote. Therefore, this is one of those “administrative law” matters left up to the bureaucracy. Influenced by statistics showing that the shorter the campaign time, the more likely the union is to win, the NLRB decided to shorten the time to as little as two weeks.
Congress recently voted to negate that rule through a resolution under the Congressional Review Act, but President Obama vetoed that, so the rule will stand. As I have pointed out before, the notion that an executive agency gets to make the law and Congress then can overrule it turns the Constitution on its head. Congress alone is supposed to legislate, but under the regime of administrative law, executive branch bureaucrats get to make law, then Congress can try to disapprove of what they do, but in the end the executive branch gets the laws it wants if the president vetoes Congress.
This dispute over the length of time for elections is, however, a matter of relatively minor First Amendment concern compared with other speech restrictions imposed under the NLRA. The quickie election rule merely compresses the time in which union opponents (which, by the way, sometimes includes workers who have had bad experiences in unionized environments) can argue their case. Other speech limits are absolute, stemming from the law’s various “unfair labor practice” provisions.
Employer free speech is restricted by the law’s method of “protecting” workers in exercising their choice between union representation or none. It’s an unfair labor practice to “coerce” workers in making that choice. You’re probably thinking, “That’s all right – companies shouldn’t be allowed to threaten and intimidate employees who seem interested in a union.” The problem is that the NLRB and courts treat mere information as “coercive” if it might cause workers to decide against unionization.
Suppose, for instance, that a union election has been scheduled at ABC Manufacturing for May 1. On April 28, the owner calls a meeting and says to the workers, “I don’t think that this union is in either your best interest or mine, so if the union is defeated, I will put an extra $100 in everyone’s pay packet next time.”
If the union in fact loses on May 1, it’s a sure thing that it will file an unfair labor practice charge against ABC for having “coerced” the workers. For many decades, it has been the law that making any promise of benefit to induce workers not to unionize is illegal. The employer will be punished for speaking to the workers on a matter of mutual interest, punishment that will take the form of a new election in which he must refrain from making any promises. (If he does, the NLRB can ratchet-up the sanctions.)
But wouldn’t workers want to know how much the company values a vote against unionization? Since they hear union promises of better conditions, higher wages and so on, shouldn’t they also be able to hear what the company is willing to promise to keep the union out?
Silencing management on this tilts the playing field in favor of unionization, but only by interfering with informed choice by the workers. That’s bad labor policy, but it’s an affront to the First Amendment. There are no exceptions written into that amendment for speech by business owners that might influence others in ways the government doesn’t like.
Now consider this case.
The vice-president of a company that’s already unionized knows that negotiations on a new labor contract will start in a month. He thinks, “These negotiations are predictable and a big waste of time. The union announces its demands ahead of time, but after weeks of wrangling, we wind up agreeing to roughly the raise we would have offered anyway just to meet the competition. Then the union takes credit for hard bargaining when it actually accomplished nothing.”
Therefore, he announces a few weeks before the negotiations begin exactly what the company is going to offer and he explains why he thinks the offer is fair and reasonable. That seems like a simple exercise of free speech, but it’s going to land him in hot water with the NLRB.
You see, the case isn’t merely hypothetical. It occurred when General Electric’s Lemuel Boulware did that in 1962. The union fought back against his free speech by institution unfair labor practice charges, claiming that he was not bargaining “in good faith.” After years of legal battles, the unions won in NLRB v. General Electric. Ever since, employers have had to refrain from directly communicating their bargaining positions to the workers. (Boulware later wrote a book about his philosophy; you can read a review by Professor Emerson P. Schmidt here.)
What that does, of course, is to make it seem that union bargaining is responsible for all contract improvements. Workers are denied information that might cause them to reassess union representation on cost/benefit terms. And again, the First Amendment’s protection of free speech is trampled upon by a group of bureaucrats.
The National Labor Relations Act is high on my list of laws that should be repealed – not just because its policy of promoting unions and collective bargaining is wrong-headed, but also because it impinges upon fundamental rights belonging to all Americans, especially freedom of speech.
Originally published on Forbes.com.