Don’t Employers Deserve Free Speech?

We read:

"The debate over the Employee Free Choice Act (EFCA) is being reframed now that the notorious “card check” provision—which would have taken away the right to secret ballots on union representation—will be pulled from the bill. Business groups and members of Congress on the fence will now come under tremendous pressure to support the act, although equally objectionable provisions, such as mandatory arbitration, remain.

Yet there has been virtually no debate over the bill’s onerous and unprecedented penalties against employers who may fall afoul of vague National Labor Relations Board (NLRB) rules as workers try to unionize. These penalties will stifle employer free speech. Would an employer be willing to inform employees about the potential downsides of unionization in the face of fines, treble damages, injunctions and costly litigation levied by EFCA?

Today, according to the National Labor Relations Act—as amended in 1947—employers are permitted to express themselves to their employees with “views, argument, or opinion . . . if such expression contains no threat of reprisal or force or promise of benefit.” Of course, this leaves unclear just what constitutes lawful opinion versus unlawful threats or promises. And over the years, the shifting composition of the NLRB—and of the courts—has caused disagreements over what permissible free speech is.

Under EFCA, employers would risk federal injunction litigation even before the labor board has considered whether there was a threat or promise. Based on union-filed unfair labor practice charges, if the board’s general counsel—one person—determines that there is “reasonable cause” to believe an employer threat or promise may have been made, EFCA requires the general counsel to seek an immediate federal court injunction.

Only much later, perhaps years later, after a costly trial, briefing and appeals will the NLRB and courts decide whether the statements were lawful and whether fines are to be imposed....

Faced with these draconian penalties, employers—particularly smaller employers—will be forced to remain silent. EFCA’s penalty provisions deserve careful scrutiny in light of statutory and constitutional free speech protections. Their net effect will be to deny free speech to employers and to deprive employees of the advantages of meaningful debate before they make important choices affecting their livelihood.

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