Employer Speech and Freedom of Association
Baird, Charles W., Freeman
I have argued that forcing a worker to submit to the will of a majority of his colleagues on the question of whether a union will represent him is a violation of that worker's freedom of association (tinyurl.com/ cepz2s). Association with a union is rightly a matter of individual not collective choice. Here I want to consider attempts by unions further to diminish worker freedom of association by trying to silence or at least obstruct employer campaign speech in the run-up to representation elections.
Freedom of association in union representation elections requires that workers be able to cast an informed vote. Workers must have access to both pro- and anti-unionization arguments. We can count on union organizers vigorously to present pro-unionization arguments. They start doing so long before any representation election is scheduled because they must get 30 percent of eligible workers to sign cards requesting unionization before the National Labor Relations Board (NLRB) will order an election.
We usually can count on employers vigorously to present antiunionization arguments, but they have less time than union organizers have to make their case. They often don't know about union organizing efforts until the union has collected the requisite signatures. The time between the NLRB's order to have an election and the actual election is crucial if workers are to be able to hear the employer's side of the story and thus be able to make an informed choice about how to vote.
In 1947 Congress amended Section 7 of the National Labor Relations Act (NLRA) to make explicit the right of workers to refrain from unionization. To give effect to that right, Congress added Section 8(c), which affirmed the right of employers to engage in free speech during election campaigns. Congress wanted workers to hear both sides of the debate over whether to unionize so that they could make informed decisions.
In 1948 the NLRB endorsed this intent of Congress by declaring, in General Shoe Corp., that its primary duty under the new law was to support workers' right to "make a free and fair choice" on the question of whether to unionize. Absent force or fraud, election debate is, the Board asserted, the best way to enable workers to do so.
In Linn v. United Plant Guard Workers (1966) the Supreme Court noted approvingly that the NLRB does not "police or censor propaganda used in the elections it conducts, but rather leaves to the good sense of the voters the appraisal of such matters, and to opposing parties the task of correcting inaccurate and untruthful statements." The Court went on to affirm that "debate . . . should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks."
Notwithstanding the clear intent of the 1947 Congress, and the eager endorsement of that intent by the 1948 NLRB, and the 1966 Supreme Court, the present NLRB demurs. It takes its orders from unions, and unions seek to silence employer speech.
The failed card-check bill would have silenced employer speech because it would have forced an employer to recognize a union as the monopoly bargaining agent over his employees if it collected the signatures of at least 50 percent of them on cards requesting such recognition. There would be no election campaign during which employers could give their side of the debate.
Card Check by Fiat
Union cronies in Congress failed to deliver on card check, but on August 26, 2011, the pro-union NLRB troika - Mark G. …