Federal Labor Law Is Anti-Free Speech

Imagine that you live in a small town whose mayor frequently schedules public meetings in which she shares information about local affairs with constituents and solicits their input.  You regularly attend such meetings and sometimes offer an opinion or two about matters of public concern.

Now imagine that on Election Day, the mayor wins another term, but the town council member representing your district, of whom you had been a public supporter, is defeated by a challenger named Joe Smith.

Now imagine that, after Smith has been formally seated on the council, you attend a public meeting sponsored by the mayor, as you always have in the past.  But when you start to state your opinion about a current issue, the mayor stops you.  “I’m sorry,” she says.  “I’d like to hear what you have to say, but I can’t, because my acceptance of your personal input could undermine Joe Smith’s status as your exclusive representative on the town council.”

Practically any American would be both shocked and outraged by such a response.  As citizens, we have been taught and understand instinctively that the fact that a particular candidate with whose views we disagree got elected to represent the jurisdiction in which we live on a town council, in a state legislature, or in Congress doesn’t in any way curtail our right to share our own views on issues of legislative significance with the elected officials who are charged with deciding those issues.  Whether you voted for him or not, your representative on your town council or in Congress is not your “exclusive” representative.  Even if he believes the opposite of what you do, you can still have the opportunity to tell the decisionmakers what  you think, and why.  And decisionmakers continue to be free to ask for your opinion whenever they want it.

Unfortunately, federal labor law and statutes patterned after it that are on the books in more than 30 states almost completely reject this principle.  Under the National Labor Relations Act (NLRA), several other federal statutes, and many state statutes, if the majority of voting employees cast ballots in favor of being unionized, the minority who oppose unionization may not, as a practical matter, share with their employer their own opinions on compensation and work-rule issues.  Instead, they have to allow the officers of a union they didn’t vote for to speak on their behalf.

As the National Labor Relations Board (NLRB), which under the NLRA has the authority to investigate and prosecute labor law violations, made very clear in its 1992 Allied-Signal decision, even if direct discussions between an employer and unionized employees only prompt the employer to make, without consulting the union, a decision the employer has every right to make without the union’s acquiescence or notification, the discussions themselves are illegal.

To quote the Board’s ruling in Allied-Signal (see the link below for the whole opinion):

It is well settled . . . that an employer who deals directly with its unionized employees or with any representative other than the designated bargaining agent regarding terms and conditions of employment violates [Sections 8(a)(5) and (1) of the NLRA].  Direct dealing need not take the form of actual bargaining.  As the Board made clear in Modern Merchandising [a 1987 ruling] . . . the question is whether an employer’s direct solicitation of employee sentiment over working conditions is likely to erode “the Union’s position as exclusive representative.”

Specifically, the NLRB found in Allied-Signal that “[g]oing behind the back of the exclusive bargaining representative to seek the input of employees on a proposed change in working conditions . . . plainly erodes the position of the designated representative.”  This is true even if the change in question (in this case, the elimination of the plant’s no-smoking areas and the imposition of a complete ban on smoking in the workplace) is not one over which the employer is legally required to bargain with the union.

In 2005, the U.S. Court of Appeals for the Sixth Circuit directly cited Allied-Signal in finding that an employer broke the law in surveying its unionized employees regarding their views on workplace issues.

An objective observer looking at NLRA 8(a)(5) and how it has been interpreted over the years cannot help but recognize it is anti-free speech.  Apologists for the NLRA may presume that the law’s extraordinary restrictions on employee as well as employer speech are justified, but they cannot deny they exist.

As a 2005 federal appellate court decision explained, an employer may not “communicate directly with” unionized employees when doing so is “likely to erode” the union’s “position as exclusive representative.” Image: topnews.ae

Allied-Signal, Inc