Government as Regulator of Labor Relations.—Numerous problems may arise in this area,776 but the issue here considered is the balance to be drawn between the free speech rights of an employer and the statutory rights of his employees to engage or not engage in concerted activities free of employer coercion, which may well include threats or promises or other oral or written communications. The Court has upheld prohibitions against employer interference with union activity through speech so long as the speech is coercive,777 and that holding has been reduced to statutory form.778 Nonetheless, there is a First Amendment tension in this area, with its myriad variations of speech forms that may be denominated “predictions,” especially since determination whether particular utterances have an impermissible impact on workers is vested with an agency with no particular expertise in the protection of freedom of expression.779
776 E.g., the speech and associational rights of persons required to join a union, Railway Employees Dep't v. Hanson, 351 U.S. 225 (1956); International Ass'n of Machinists v. Street, 367 U.S. 740 (1961); and see Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) (public employees), restrictions on picketing and publicity campaigns, Babbitt v. United Farm Workers, 442 U.S. 289 (1979), and application of collective bargaining laws in sensitive areas, NLRB v. Yeshiva Univ., 444 U.S. 672 (1980) (faculty collective bargaining in private universities); NLRB v. Catholic Bishop, 440 U.S. 490 (1979) (collective bargaining in religious schools).
777 NLRB v. Virginia Electric & Power Co., 314 U.S. 469 (1941).
778 61 Stat. 142, § 8(c) (1947), 29 U.S.C. § 158(c).
779 Cf. NLRB v. Gissel Packing Co., 395 U.S. 575, 616-20 (1969).
Last modified: June 9, 2014