Balkinization: Employer Property, Employer Speech, and Worker Organizing

Employer Property, Employer Speech, and Worker Organizing

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Benjamin Sachs

Firing NLRB member Gwynne Wilcox and thereby incapacitating the NLRB has been one, but only one, of the administration’s drastic steps in the direction of undermining workers’ rights to organize unions and bargain collectively. Attempting simply to disqualify hundreds of thousands of federal employees from collective bargaining is another. But more threats to the right to organize are on the near horizon and these will likely be harnessed by the administration if and when the Board is restored to a functioning quorum.

The National Labor Relations Act grants private sector workers in the United States a protected right to organize unions. The NLRA does other critical things: it imposes a duty to bargain on employers and it insulates at least some forms of pickets and strikes from employer retaliation, for example. But the statute’s essential mission is protecting workers’ ability to organize, and that means protecting workers’ ability to talk with each other and with organizers about unions.

Several major threats to employee speech rights lurk in our system of labor law. One is employer property rights, which act as a blunt limitation on employees’ ability to talk about unionization: the law tells employees, in essence, they can’t speak about unionization when, where, or with whom they’d like because doing so would trench on employers’ right to control their private property. Because it’s ostensibly private property that does the work of silencing employee speech, moreover, First Amendment arguments are generally of no use to employees. A second threat to employee speech comes from employer speech rights, which act as a counterweight to rather than a limitation on employee speech rights: here the law takes the position that employers have the right to make the case against unionization so forcefully that no amount of employee speech may end up mattering. Because it is the NLRB that places limits on such employer speech, moreover, the First Amendment is always available to employers as a tool to attack limits on their right to speak against unionization.

Across the history of the NLRA, the weight that judges and the Board have given to employer property and speech rights has swung with the political makeup of the Board and the courts. The Trump Board (if there ever is one; as of this writing, the President has yet to nominate anyone to replace Wilcox or fill the other vacancy) and the Trump courts are sure to shift the balance in the direction of employer property and speech, sacrificing employee speech – and thus employee organizing prospects – in the process. And while the First Amendment will be successfully invoked to uphold employer rights to speak against unionization, the Amendment will be useless when it comes to protecting employee speech rights against either employer property or the silencing effects of overwhelming employer speech.

In the early days of the Act, courts allowed employee speech rights to intrude into employer property. For example, in 1945, the Supreme Court held that the NLRA’s grant to workers of the right to engage in concerted activity implied a right to talk with one another about unions at work. The importance of the location of union speech was not lost on the Court: it understood that as a practical matter (the workplace was the one location where all employees gathered together) and as a symbolic matter (allowing union speech on company property had the effect of normalizing that speech) enabling workers to discuss unionization in the workplace would make or break many an organizing effort. And so the Court in Republic Aviation held that employer property rights had to bend to workers’ newly won statutory rights to organize. Modern echoes of Republic Aviation can be found in the Obama Board’s Purple Communications holding that the NLRA requires employers to let workers access company email for organizing purposes.

The contemporary trend, though, is decidedly in the other direction and will likely accelerate during the new Trump administration. During the first Trump administration, the Board repeatedly invoked employer property rights to curtail workers’ speech rights. It, for example, reversed Purple Communications and held that employers’ property rights in company email systems precluded a rule giving workers the right to use email to discuss unionization or other forms of collective action. And, in an opinion with huge implications for contemporary labor markets, the Trump I Board held that subcontracted employees have zero right, when they’re off duty, to talk union on company property.

But the most famous, and the most far reaching, example comes from the 2021 Supreme Court decision in Cedar Point. That case involved a California Agricultural Labor Relations Act (ALRA) regulation allowing union organizers to come onto farm owner property for a few hours a day to talk to farm workers about unionizing. The regulation was essential to the success of the ALRA because, given the migratory nature of farm labor, it was essentially impossible for organizers to contact enough farm workers when they were not on company property. Nonetheless, the Supreme Court found the regulation to violate the Takings Clause. Why? Because the “right to exclude is one of the most treasured rights of property ownership,” and the union access provision “appropriates for the enjoyment of third parties [namely, unions] the owners’ right to exclude.” Other regulations that protect employee speech at the expense of employer property, including Republic Aviation itself, may now be vulnerable to a similar holding.

Employer property rights are thus a continual threat to the NLRA’s ability to protect workers’ right to organize because property rights are invoked to extinguish employee speech rights. Employer speech rights pose another such threat. Indeed, the blockbuster, end-of term decision from the Biden Board, Amazon.com Services, declaring captive audience meetings unlawful, turns not on property, but on employer speech. The holding enacts a significant restriction on employer speech rights as a means of ensuring employees a meaningful right to organize. But the decision will likely be reversed by the Trump Board (again, assuming there is one), in an opinion that will likely restore the right to hold captive audience meetings on the ground that such meetings are protected employer speech.

Employer rights to speak about unions were added to the NLRA in 1947 with the Taft-Hartley amendments, through §8(c), a slightly odd provision that tells the Board (and reviewing courts) that employer speech cannot be the basis of an unfair labor practice unless that speech is coercive. In particular, §8(c) says:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice . . . if such expression contains no threat of reprisal or force or promise of benefit.

Captive audience meetings are ones for which employee attendance is mandatory and at which employers deliver messages meant to discourage employees from voting in favor of unionization. They are used with remarkable frequency: in recent years, 85% of employers who waged any sort of anti-union campaign used captive audience meetings, holding an average of 16 captive audience meetings during the course of a single campaign. They’re also effective – the correlation between captive audience meetings and unsuccessful unionization efforts is well documented. Amazon certainly thought they worked: in the anti-union campaign that gave rise to the Board’s opinion, the employer at one point was holding a captive audience meeting every 45 minutes, six days a week.

For decades, Board doctrine dictated that captive audience meetings were lawful. The reasoning of the seminal opinion on captives was thin but relied on section §8(c): unless something the employer actually said during the meeting met the definition of coercion – unless it amounted to a threat of reprisal or force – the meeting was employer speech protected by §8(c). The Amazon Board rejected this precedent and found captive audience meetings to constitute an unfair labor practice.

In holding captive audience meetings unlawful, the Biden Board needed a theory as to why the meetings violated employees’ section 7 rights to engage in or refrain from concerted activity for mutual aid and protection. The Board had three such theories. One, it decided that employees’ §7 rights include the right to be “let alone” about union activity, and being coerced to listen to an employer’s position on the union question directly undermines this right. Two, it held that captive audience meetings gave employers the ability to “observe and surveil” employees during a discussion of section 7 activity, and such surveillance has long been considered an unfair labor practice. Three, because the employer has coerced employees into attending the meeting, the message delivered during the meeting – “vote no” – is likely to take on a similarly coercive character; if employees are coerced into listening to an anti-union message, the message itself becomes coercion, and therefore is an unfair labor practice.

The holding is unquestionably a victory for worker organizing. But the Board’s reasoning does raise some questions about speech in the labor organizing context. For example, if employees have a right to be “let alone” when it comes to speech about unionization, what does this imply about union rights to contact and speak to workers about organizing?

But it is the third theory that is most of interest here. The Board’s idea is that if employees are coerced (by the threat of discipline or discharge) into attending a meeting at which an employer speaks about unionization, then the employer’s anti-union speech at the mandatory meeting itself becomes coercive, irrespective of the content of the speech. Put differently, if an employer coerces an employee into listening to a “vote no” message, then the “vote no” message becomes coercive no matter what words the employer uses to convey its message.

What is appealing about the Board’s theory is the idea that the coercive character of employer speech cannot be ascertained simply by reading the words that the employer speaks. The context of the speech is dispositive. As the Supreme Court has written (and as the Amazon Board quotes), in assessing the coercive character of employer speech, the context which matters is the “economic dependence of the employees on their employer.” And so we must take into account “the necessary tendency of the [employees], because of that relationship, to pick up intended implications of the [employer] that might be more readily dismissed by a more disinterested ear.” It is undoubtedly true that the coercive character of a captive audience meeting imbues the speech delivered during such a meeting with greater coercive force than speech delivered in most other contexts.

But there is a complication with this part of the Board’s theory, too. If we take the context of employer speech seriously, if we accept that the employees’ economic dependence on the employer imbues words spoken by the employer with coercive force, we need a way to distinguish what employers say during captive audience meetings from the things employers say at all other times. That’s difficult because the entire employment relationship is imbued with the employer’s coercive authority over the employee. There is no moment, no meeting, no interview, no casual exchange, during which the employer doesn’t have coercive authority over the employee and so no moment when employer speech isn’t infused with coercive power. The problem is that this could imply that all employer speech – at least all employer speech on the union question – is coercive, thus rendering §8(c) a nullity: the section would protect a category of speech (non-coercive employer speech about unionization) that simply doesn’t exist.

The Amazon Board does offer an answer to this conundrum: it clarifies that it is the employer mandate, the order that employees attend the captive audience meeting or face discipline, that renders the employer speech given during the meeting coercive. Absent such a mandate to attend and listen, the Board thinks we just have plain, noncoercive – and thus protected – employer speech. Accordingly, the Amazon Board establishes a safe harbor and holds that if employers make plain that attendance at “vote-no” meetings is in fact voluntary (if the employer communicates that “[e]mployees will not be subject to discipline, discharge, or other adverse consequences for failing to attend the meeting or for leaving the meeting”) then there’s no unfair labor practice.

But this answer depends on a premise that may be in tension with the rest of the Board’s reasoning: that a meeting, at which the employer intends to convince employees to vote no on unionization, will ever be perceived by employees as voluntary. After all, no matter what the employer says or promises to do, it will know who attends such meetings and who does not. And it will be able to, without making the connection explicit, impose consequences on those who don’t attend. And so why doesn’t the employees’ economic dependence on the employer render all such meetings, in practice, mandatory? In other words, in the face of employer assurances of voluntariness, why won’t employees “pick up the intended implication” that would be lost on a more “disinterested ear” – the implication being, quite plainly, that the meeting is mandatory no matter what the employer says to comply with the Board’s safe harbor? And if all vote-no meetings are mandatory, aren’t they all unfair labor practices?

The upshot of this quandary ought to be a recognition that, in a context defined by coercive economic power, employer speech never lacks coercive force. And this recognition should prompt a reinterpretation, or revision, of §8(c) that moves in the direction of limiting employer participation in union campaigns. The problem is, limiting employer participation will violate both § 8(c) of the statute as interpreted by the Trump Board and the First Amendment as interpreted by Trump courts. In fact, while the First Amendment will be incapable of saving employee speech from the invocation of employer property rights, it will stand in the way of an NLRB rule requiring greater employer neutrality on the union question.

Benjamin Sachs is Kestnbaum Professor of Labor and Industry at Harvard Law School. You can reach him by e-mail at bsachs@law.harvard.edu.

Posted 9:30 AM by Guest Blogger [link]