I recently participated in a policy roundtable in Big Sky, Montana, where I discussed the fundamental rights of employers and employees to assemble and communicate. Right now, an intensifying debate is unfolding between the agenda of organized labor and our founding American principles. U.S. employers should be concerned about recent legal and regulatory developments; specifically, employees and their employers are having their freedom to associate and their freedom of speech impacted. If a majority of workers want a union, they should be able to vote for a union, but imposing one on them is undemocratic.
One area where – union activists are trying to limit the freedom of association by banning managers from talking to their own employees and educating them about their rights To date, nine states have passed laws that ban employer/employee meetings derogatorily called “captive audience” meetings during union campaigns. The term “captive audience meeting” makes the activity sound shadowy and underhanded and the current National Labor Relations Board and its General Counsel are waging an all-out war on the ability of companies to simply talk to their employees. And yet – such laws are actually unconstitutional. Passing a state law in direct violation of the US Constitution is not exactly our country’s “democracy” or more accurately our democratic republic. In 2008, the U.S. Chamber of Commerce supported a challenge to a California law that regulated employer communications with employees without banning mandatory meetings. In Chamber of Commerce of the U.S. v. Brown, the Supreme Court struck down the law in a 7-2 opinion, the court concluding it was preempted by federal law. Glenn Spencer, the top labor law expert at the US Chamber of Commerce and one of our panelists at our roundtable has spoken out against the efforts in the states to ban these constitutionally protected meetings. He said in response to union efforts in to ban “captive audience meetings” that: “Connecticut’s law is at odds with well-established First Amendment and NLRA precedents regarding the free speech rights of employers.”
Small business groups, like the Association Builders and Contractors have been speaking out for years: Associated Builders & Contractors of Connecticut president Chris Fryxell said state government intrusion in workplace communications “isn’t just wrong, it’s unconstitutional. We are accustomed to defending our members from state government’s assaults on competitive bidding and free enterprise; but the trampling of federal law to stifle speech between employer and employee is a new level of government overreach. Businesses must be permitted to openly connect with their employees on important issues as they relate to legislation, regulation, and unionization so that employees are able to make informed decisions about their own future and the future of the company.”
Yet such communications are no different from any other kind of meeting. If there is a business decision at the ballot box — a major decision not being made by the leadership of a company — that decision belongs solely to the employees, who ought to be informed.
Unions like to create divisions and thought they could get some help from the world stage. Calling on the United Nations, International Labor Organization to once and for all call out the U.S. employers to speak to their own employees about unionization in the workplace. The AFL-CIO thought they had the perfect case to present to the ILO’s Committee on Freedom of Association involving a major airline here in the United States, under the jurisdiction of the Railway Labor Act. At that time, in 2010, if one of the employees wanted to vote against having a union, there was no option on the ballot to simply vote “no.” The only option was to not vote at all. The airline ran a campaign, called the “Get It, Rip It” campaign, advising its employees to make their voices heard by tearing up the ballots when they arrived in the mail.
Subsequently, the AFL-CIO tried to codify the criminalization of such campaigns, and they brought their case before the ILO’s Committee for Freedom of Association.
And guess what — it backfired on them. The ILO ruled that the “Get It Rip It” campaign was perfectly legal, and went even further stating that employers have an actual right to talk to their employees. By not doing so, they deny their employees the entire picture that they need to make an informed vote.
Unions don’t want informed employees and want to not only control the narrative but be the only narrative.
With membership down to a little more than six percent in the private sector, unions have grown desperate. They have run a highly effective PR campaign to reinvent themselves as human rights groups, appealing to the millennials and the plurals which are making up the workforce. As Vincent Vernuccio has recently written in his report, “Unions Need Democracy, “private sector unions are becoming less democratic and representative — even as they claim to represent all workers at unionized worksites. Ninety-five percent of union members in the private sector never had the opportunity to vote to be in the union.” All of this said…
Yet American labor law is fair labor law that gives the employee the right to decide if they want to engage in collective bargaining with a third-party representative. Not the employer, not the union, but the employee. Let’s all support freedom of choice and shine a light on the forces that hide behind the concept of democracy while standing for its opposite.
Russ Brown, a passionate defender of the rights of employers and employees to freely associate and understand their rights. Russ is a long-time labor and management expert, consultant to companies of all sizes, President of RWP, Labor, LLC and the Chair of the Center for Independent Employees.
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