Focus: The Importance of Labour Speech

Abstract

12 | International Union Rights | 24/3 FOCUS | FREEDOM OF EXPRESSION For seventy years it has been the goal of national labour policy to overcome the ‘inequality of bargaining power between employees… and employers… by encouraging the practice and procedures of collective bargaining’. Collective bargaining means the ability of workers to join together to negotiate with their employers over wages and working conditions. When workers stand together (i.e. in a union) they have more bargaining power, and that bargaining power gives them a say at work. Not surprisingly, data show that where collective bargaining has been instituted, it has improved wages, with workers earning on average 13.6 percent more when covered by a collective bargaining contract. In our era of increasing inequality, that kind of wage premium makes a real difference in the lives of struggling low- and middle-income families. For many men and women struggling to get by and to provide their children a better life, collective bargaining can open a door to the American Dream. And for that and many other reasons, survey after survey shows that American workers would like to have the say at work that collective bargaining provides. However, for collective bargaining to take place workers must be able to organise. Organising is the central necessary task of America’s unions. But it has never been easy. Despite the basic procollective -bargaining policy of national law, employers, backed by teams of lawyers and labour consultants, have consistently, and in the main, successfully, resisted organising efforts. Among their powerful weapons have been lawsuits seeking damages and injunctions based on union organising statements and materials. For national labour policy to become reality, courts must recognise the importance of labour speech in organising and strikes. Speaking out Both the US Constitution and the National Labor Relations Act (NLRA) strongly support the right of workers and unions to speak out concerning their wages and working conditions in pursuit of organising or collective bargaining. As the Supreme Court stated in its 1940 decision in Thornhill v Alabama, ‘the dissemination of information concerning the fact of a labor dispute [is] within that area of free discussion that is guaranteed by the Constitution’1. The Thornhill opinion has been regularly cited and its significance broadened since it was first issued. It is also well settled that Section 7 of the NLRA, which grants workers the right to ‘engage in ... concerted activity ... for the purpose of collective bargaining or other mutual aid or protection’, covers and protects a wide variety of speech in the organising context. It is not necessary that speech be courteous, accurate, or reasonable for it to be protected. Indeed, the Supreme Court has recognised that epithets such as ‘scab’, ‘unfair’, and ‘liar’ are commonplace in labour disputes and entitled to protection, even when such heated rhetoric is not entirely accurate. It is also true that because of the legal doctrine known as Federal Preemption, speech or conduct actually or even arguably protected by the NLRA is generally not subject to the jurisdiction of state courts. State judges are often ignorant of federal labour law and antagonistic to its goals. As stated by Justice Frankfurter, ‘to allow the states to control conduct which is the subject of national regulation would create potential frustration of national purposes’2. But the Court significantly modified Justice Frankfurter’s announced policy in Linn v. Plant Guard Workers3. The Court in Linn upheld by a five to four vote the exercise of state jurisdiction in a libel suit arising from a union organising drive. Justice Clark, who wrote the majority opinion, insisted that such jurisdiction would not pose a threat to a union’s right of speech so long as state jurisdiction was ‘limited to redressing libel issued with knowledge of its falsity, or with reckless disregard of whether it was true of false’. Although he recognised the importance of a broad right of speech generally in labour disputes, Justice Clark concluded that where malice was found ‘the exercise of state jurisdiction … would be a “merely peripheral concern of the Labor Management Relations Act”‘. Four justices dissented. They pointed out that the Court’s standard was vague and could easily be interpreted to...