Question

Read the following article: Johnson, T. (2015). Ambushing Employers' Speech Rights; The federal government is redoubling efforts to promote unions and keep companies quiet (Links to an external site.)Links to an external site.. Wall Street Journal Online. April 16, 2015.

The article claims that NLRB restricts the free speech rights of employers to the detriment of employees and in favor of unions. Do you agree, why or why not? Unions are one of the very few ways employees can get a voice in the US workplace. Therefore, do you think that unions need some protection, especially when they are losing popularity, why and why not?

Abstract Translate Since the New Deal, courts have largely deferred to the NLRB's judgment of how best to promote free and fair union elections. Many of these pro-union decisions are still enshrined in law. Jemployers today can be held liable for announcing raises during a union campaign, despite the obvious benefit to employees Full Text Translate A popular narrative since the Supreme Court's Citizens United decision in 2010 posits that corporations have displaced political and religious minorities as the principal beneficiaries of First Amendment rights. There supposedly has been a "corporate takeover" of the First Amendment, as Harvard Law School's John C. Coates IV put it in a February paper. This theory is flawed for many reasons, but one deserves special mention. For many companies, the most important place to exercise speech rights is in the workplace, where management and employees communicate about the terms and conditions of employment. And in this area, organized labor has succeeded for decades in restricting a company's ability to speak freely to address employee concerns The current administration in particular has sacrificed the speech rights of employers and employees to advance a pro-union agenda Last month, for example, the president vetoed an effort by Congress to overturn the National Labor Relations Board's controversial "ambush election" rule. This rule, which took effect on Tuesday, reduces the time that employers have to present information to employees in advance of a union election, thus making it easier for unions to campaign without meaningful opposition. Court challenges to the rule are currently pending Meanwhile, the board is championing labor efforts to organize small groups of pro-union employees into "micro unions"-say, a men's shoes department in a retail store. This strategy essentially enables unions to gerrymander a workplace, organizing union supporters while carving out employees who might oppose unionization. The president has also voiced support for "card check" legislation that would effectively replace secret-ballot union elections with signature drives backed by union officials This hostility toward speech opposing unionization differs markedly from the NLRB's treatment of speech that is adverse to employers For example, the board's social-media guidelines, issued in memoranda released in 2011 and 2012, aim to shield employees from discipline for posting Facebook comments that disparage their employers, regardless of whether those comments are rude, profane or amount to harassment These new initiatives dilute the influence of the significant majority of unrepresented employees who would prefer a nonunionized workplace. Not coincidentally, this offensive comes at a time when union influence and participation in the private sector is at an all time low. Only 6.6% of private-sector employees were unionized last year, compared with 23.4% in 1974, according to analysis of government data Indeed, the NLRB has cited the declining popularity of unions as justification for more intrusive regulation of employer speech. In 2011 claiming that workers were insufficiently apprised of their own self-interest, the board enacted a rule that would compel employers to post a notice reminding employees of their rights to unionize, strike, picket and even wear "union hats, buttons, T-shirts, and pins in the workplace.! The court of appeals for the D.C. Circuit held that the board was prohibited from conscripting employers into delivering this one-sided message. But a later decision by the same court called into question whether even this modest reprieve for free speech will survive. It is past time for courts to take a fresh look at the law on speech in the workplace, which benefits unions at the expense of employers and employees alike. Since the New Deal, courts have largely deferred to the NLRB's judgment of how best to promote free and fair union elections. Too often, though, the board has abused this authority by restricting speech that it determined could unduly influence an employee's vote. In the 1947 Taft-Hartley Act, Congress attempted to limit the NLRB's ability to police workplace speech. But in the decades that followed, the Supreme Court repeatedly ruled that federal interests in "industrial peace" or reducing perceived inequalities in bargaining power, could trump the constitutional and statutory mandates of free speech. Many of these pro-union decisions are still enshrined in law n the 1947 Taft-Hartley Act, Congress attempted to limit the NLRB's ability to police workplace speech. But in the decades that followed, the Supreme Court repeatedly ruled that federal interests in "industrial peace," or reducing perceived inequalities in bargaining power, could trump the constitutional and statutory mandates of free speech. Many of these pro-union decisions are still enshrined in law. Thus, employers today can be held liable for announcing raises during a union campaign, despite the obvious benefit to employees. Employers must also be careful when predicting the potential costs associated with unions, lest those statements be treated as implied threats to punish employees if they unionize. As a result, employees are less informed about their choices, and unions havea convenient cudgel to use at the bargaining table: They can threaten legal action based on perceived threats or incentives from employers The Constitution does not give unions such special protections from the marketplace of ideas. And those concerned with a "corporate takeover" of the First Amendment should recall that Citizens United protected the speech of unions and corporations alike. The same cannot be said for the NLRB, where companies are uniquely disfavored and unions are singled out for special treatment-to the detriment of the employees they purport to represent. Mr. Johnson is an attorney in Washington, D.C., where he practices labor and employment and appellate law. Credit: By Thomas M. Johnson Jr

Answer 1

Given the various disadvantages that exist for ensuring fair and equitable employment facilities with commensurate compensation, for a single individual, it becomes essential that employees have some kind of means to control and avoid being exploited or subjected to unfair and unjust treatment within an organization through a representative group. It was this situation that led to the formation of employee unions as employees joining together as a united combined force to combat unfair treatment at the hands of employers. Unionization even within any company is a result of employees perceiving existing work conditions or terms as unfair and unjust leading to a disadvantage or loss to the concerned employee or employees. By forming or being part of a union, employees can to a large extent avoid exploitation and control discriminatory practices which may exist in an organisation, initiating action against the organisation through the union which has greater power and resources to ensure corrective action and prevalence of Justice. Therefore, by enrolling with the union employees get the right to bargain collectively regarding work conditions or terms participate in and organize labor organizations of their choice. However, with unions becoming increasingly strong with exceptional power to control the production and future operations of an organization it has resulted in the exploitation of this power by the leaders of the unions, and created politicization of the unions sabotaging very often the cause they were created for due to inability to focus on the mission and pursuance of personal benefits for leaders. Leaders may accept personal favors and bribes from the organizations instead of bargaining for the best possible terms and conditions of employment for all concerned. It may also negatively impact the economy due to a serious disadvantage for an organization, resulting from excessive interference in operations and control over labor by unions.

I would strongly support Unionisation as it is important to ensure non-discriminatory and fair and equitable treatment of all employees but ensure that the management of the union has inbuilt monitoring processes to control actions of the leaders and ensure the union effectively achieves the major goals it is formed for. This is the area where the NLRB has failed to perform due to a prevailing bias towards labor unions disadvantaging not only employers but employees also, supported by statutes and mandate, that the union is the underdog to be protected without analyzing the application of the important "good faith factor" having been applied. It has not fulfilled adequately its duty of protecting the interests of the employees as it seems to have delegated the responsibility to labor unions without implementing any measures for monitoring and control of the performance of the unions or effective fulfillment of the duty delegated with the achievement of desired outcomes.

The NLRB needs to understand the importance of its role in providing a fair and just work environment with equal opportunity for all and discrimination towards none which is only possible by an unbiased approach towards employers and employees with adequate protection of rights of both, and promoting the role of the union as a facilitator of the goals of the Board by adequate monitoring and control. Unions are losing popularity due to their inability to establish their immaculate image resulting in loss of trust in their intention and efficacy in the protection of employee rights, they need to implement changes to make every process and procedure entirely transparent with absolute inclusion and participation of all members which will serve as a natural control against hankering after personal gains with all major decisions being put to a vote through a fair system being adopted. The positive power of unions needs to be exploited and used to optimize their performance instead of allowing the negative connotations to sink them forever. Save them but change them.