Protecting Free Debate on Unionization
William J. Kilberg and Jennifer J. Schulp*
Congress enacted the National Labor Relations Act in 1935 to provide uniform federal regulation of the relationship between labor unions and management.1 As originally enacted, the NLRA strictly regulated employer conduct, but did not impose the same level of regulation (or similar prohibitions) on unions themselves. Just over a decade later, Congress amended the NLRA to respond to the growing imbalance of power that favored unions by setting limits on certain union conduct. The Taft-Hartley Act amendments to the NLRA also sought to level the field by expressly guaranteeing the rights of employers to engage in non-coercive speech regarding unionization. Section 8(c) of the NLRA embodies this protection, providing that
[t]he expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic
or visual form, shall not constitute an unfair labor practice
under any of the provisions of this subchapter, if such expres-
sion contains no threat of reprisal or force or promise of
Quite simply, section 8(c) gets it right.
This term, the Supreme Court found that the NLRA's protection of free debate in the context of union organization, articulated in
*William J. Kilberg is a partner and Jennifer J. Schulp an associate at Gibson, Dunn
& Crutcher LLP in Washington, D.C. Kilberg was U.S. Solicitor of Labor from 1973
to 1977. The authors thank Mark Perry for his review of this article.
1 29 U.S.C. §§ 151–69.
2 29 U.S.C. § 158(c).