Monday, October 10, 2005

Further Erosion of the Employment Relationship


From the law firm of McGuireWoods:
The National Labor Relations Board recently held that an employee's statements to a local newspaper and subsequent postings on an Internet message board in the context of labor organizing were protected activity under the National Labor Relations Act.

Following the purchase of a manufacturing facility and subsequent layoff of roughly 200 employees by the new owner, the union attempting to organize the facility's employees approached a retained employee to talk to a newspaper about the firings. The newspaper quoted the employee that the layoffs "left gaping holes in this business". The company warned the employee that such comments violated the employee handbook because they were disparaging to the company, and that the employee would be fired if he did it again. Two weeks later, the same employee responded to an anti-union posting on the newspaper's internet message board. Among other statements, the employee stated in his post that the company was "being tanked by a group of people that have no ability to manage it." He was fired soon after, and the union filed an unfair labor practice.

Affirming the statement that management "cannot be too thin-skinned," the Board affirmed the ALJ's decision that the activity was protected for three reasons. First, the newspaper quote and internet posting both involved employment matters. Second, there was a sufficient link between the statements and the ongoing controversy. Finally, the Board ruled that the comments were "not so egregious" as to fall outside the realm of protected activity.
Clearly, the NLRB remains in the grip of Left-wing doctrines, if not in the grip of Left-wing members. It takes a lot of specious reasoning to hold for the employee in the case cited by McGuireWoods. First, the newspaper quote and internet posting were statements by the employee, not the employer. Second, the employee made the link between the statements and the "ongoing controversy." Finally, the employee's statements could be found to be "not so egregious" only by a body that is already biased against employers. In sum, the employee bad-mouthed his employer and got away with it simply because of an "ongoing controversy" about unionization. It's an invitation to disgruntled employees to incite unionization. Apparently almost anything goes under the cover of an effort to unionize a workplace.

Is there a free-speech issue involved? Not at all. The Constitution's guarantee of freedom of speech is -- or was intended to be -- nothing more than a guarantee that government cannot suppress speech. Of course, that guarantee has been vitiated by restrictions on such things as commercial speech and campaign speech.

Nothing in the Constitution gives anyone the right to disparage an employer and duck the consequences. In fact, nothing in the Constitution gives government the right to legislate unionism, in particular, or to interfere in employment relationships, in general.

The NLRB's ruling is another dreary reminder of the many unconstitutional excesses of the New Deal.

UPDATE: A reader objects to my opening comment on the NLRB decision: "Clearly, the NLRB remains in the grip of Left-wing doctrines, if not in the grip of Left-wing members." He says:
Left-wing doctrines maybe, but to imply the current Board members are a bunch of left-wingers is an absurdity. Anybody who even casually follows Board decisions readily admits that the Board has moved sharply toward management-side on the whole in recent years. If you feel the statute is left-wing, then your gripe is with Congress, not the Board--unless you can point to an example of the Board interpreting the statute in a left-biased way, which I expect you can't.
My reply:
Regardless of the Board's current ideological composition, it's clear that the Board acted in a Left-biased way in the case at hand. I need look no further. The Board chose to interpret the employer's actions as an act of interference with an attempt to unionize. I would have interpreted the employer's actions as a justifiable course of discipline against an employee who contravened the employer's stated policies.

I have had dealings with a similar body (the EEOC), and I doubt very much that the problem is statutory. No statute can prescribe precisely how a body like the NLRB must judge the motivations of employer and employee in a particular case. The Board made a judgment call, which smacks of complaisant adherence to decades of Left-wing precedent. Perhaps the Board is too willing to accept the recommendations of its Regional Directors and their long-serving staff employees, many of whom are likely to be imbued with the "rightness" of Left-wing interpretations of the NLRA.

Anyway, the sentence to which you object . . . means this: "The NLRB remains in the grip of Left-wing doctrines (interpretations of statutory authority), even though its members may (or may not) be Leftists." . . .

I might have written this: "Clearly, the NLRB remains in the grip of Left-wing precedents that the Board's current membership is too gutless to reverse." But I'll leave it as it stands.
UPDATE 2: My correspondent rightly notes that the National Labor Relations Act (Wagner Act), which established the NLRB, "could have been an overwhelmingly destructive statute." Although it has been destructive enough, I agree that things could have been worse had the anti-business (and therefore anti-growth) intentions of its framers been executed down the line. But in spite of the intentions of the Act's framers, its words (in my opinion) give the NLRB leeway for pro-employer decisions. It's a shame that the NLRB didn't take advantage of that leeway in the case highlighted by McGuire Woods.