Even casual OBW readers know the extent to which we've fought, and so far held off, imposition in Washington of the onerous union gag rule, unconstitutionally prohibiting employers from communicating with employees, on the employer's time and premises, about labor unions.
This piece in today's Wall Street Journal looks at an implict gag rule in the exquisitely mis-named "Employee Free Choice Act," the legislation formerly known as card-check. (I say "formerly" because labor's campaign in Congress to deny the secret ballot to employees in union elections has apparently been beat back, for now).
According to a former general counsel of the National Labor Relations Board, John Irving:
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.
For example, employers who might sincerely assert to their employees that “unions cause plant shutdowns” or “could cause loss of customers” may or may not be exercising lawful free speech, depending on the views of the labor board at the time. If employers fall afoul of the law today, they face only nonpunitive “make-whole” and “cease and desist” sanctions.
But EFCA dramatically escalates these penalties. Under the new bill, the employer could be subject to a $20,000 fine for each questionable statement, and to near-automatic injunction proceedings based on union-filed unfair labor practice charges. [snip]
... 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.
