A more perfect union: Free Speech and a growing labor movement

By Jacob Sowers ’23

Over the past year, pro-union workers have won key elections at companies that have historically fought and campaigned against worker representation. 

In April 2022, the Amazon Labor Union successfully unionized its first warehouse in Staten Island after years of struggle. In June 2022, retail employees at an Apple store in Towson, Maryland, were the first of its 270-plus stores to unionize. Last summer, Starbucks had a record surge of union votes at more than 300 different stores across 36 states, resulting in some 250 stores and 6,500 employees becoming unionized. 

But despite these gains, unionization remains at a record low in the United States. And with respect to Free Speech, several factors pave a tough terrain for the American labor movement to navigate. In particular, three issues stand out as contributing to the union lag. 

Help wanted – a rise in unfair labor challenges 

According to the National Labor Relations Board (NLRB), the federal agency that enforces federal labor laws, roughly 18,000 unfair labor practice charges were filed in fiscal year 2022, an increase from 15,000 the year before. And in 2022, union election petitions increased by 53% compared to 2021. 

“The NLRB is processing the most cases it has seen in years with the lowest staffing levels in the past six decades,” NLRB General Counsel Jennifer Abruzzo stated, adding that the agency needed “more resources to process petitions and conduct elections, investigate unfair labor practice charges, and obtain full remedies for workers whose labor rights have been violated.” Abruzzo called on Congress to help restore the agency after “years of underfunding.” 

Some assert that worker retaliation and labor relations complaints have skyrocketed due to illegal methods being deployed to dissuade workers from engaging in collective bargaining. 

For instance, the NLRB has issued 35 formal complaints against Starbucks, which has received more than 325 unfair labor charges from employees and workers’ rights organizations as of October 2022. The former CEO of this outspoken anti-union company, Howard Schultz, publicly stated that unions were “an adversary that’s threatening the very essence of what [we] believe to be true.” Schultz has since returned to Starbucks as Interim CEO, a move that some union organizers viewed as a direct response to growing union-organizing campaigns in the company. 

Anti-union propaganda campaigns remain incessant as well. Since 2016, labor officials have accused Amazon of violating federal law by holding anti-union meetings, a routine tactic of the tech giant, and one that critics say never results in penalties. 

The NLRB – a swinging pendulum of bureaucracy 

The NLRB was created by the National Labor Relations Act of 1935 (NLRA), the bread-and-butter of labor relations law, and the legal foundation for collective bargaining and unionization. The NLRA also defines the fundamental rights of Free Speech and free expression in the workplace – to a limited extent – by establishing workers’ rights to concerted and protected speech. But rights to “concerted” and “protected” speech have never been substantially defined by the NLRA or other precedent. 

The NLRB is made up of the General Counsel and the Board. The General Counsel investigates and prosecutes unfair labor claims funneled through regional offices and administrative judges. 

The Board, however, reviews cases and issues decisions. Similar to how the Supreme Court exercises judicial review, its power focuses on the specifics of certain labor disputes. The Senate confirms its members and the President appoints them. Whereas Supreme Court justices are expected to be impartial, Board members are appointed by the President based on political background and ideology and serve staggered five-year terms, but are not seen to be as politically significant as judicial appointees. 

This often leads to a hodgepodge of contradicting opinions that change back and forth, depending on the administration. As decisions on essential legal questions flip back and forth, labor-related Free Speech violations become inherently political. Republican Board members tend to rule in favor of corporations, while Democratic members tend to favor workers and unions. 

For instance, in 2019, a Republican-majority NLRB restricted the precedent of Republic Aviation Corp. v. National Labor Relations Board, a 1945 case where the Supreme Court ruled that workers had the right to certain kinds of protected speech in the workplace, such as the display of union insignia. This enabled Walmart to restrict pro-union apparel during a contentious union representation campaign. 

Three years later, a Democratic-majority  NLRB ruled that a “team-wear” policy at Tesla’s Fremont facility – which prohibited union-related insignias and clothing – violated workers’ rights. The Board also argued that the previous Walmart decision “upset the proper balance struck by the Supreme Court in Republic Aviation, ignored decades of Board precedent,” and created “uncertainty in this previously well-settled area of the law.” 

The examples are countless. Convoluted enforcement is only made worse by the fact that corporate penalties for violating federal labor laws remain relatively weak. The NLRB can choose which cases it wants to hear, but it is not a judicial entity. It has the power to issue complaints, but must seek a court order to enforce its decisions.

The NLRB cannot assess monetary penalties on corporations or unions that break U.S. labor law – they can only require remedies for situations, such as reinstating workers, back pay, and compensation. An example of this occurred in 2021, when the Democratic- controlled NLRB ruled that Tesla violated the law when it prohibited workers from discussing factory conditions with the media, and restricted pro-union discussion in its warehouses. Tesla was also required to rehire a former worker and union activist, Richard Ortiz, who allegedly was fired for distributing pro-union leaflets outside one of Tesla’s factories. 

Despite the NLRB having the power to require remedies, attempts to quash labor movements still persist. Starbucks and Amazon continue to fight against prominent campaigns and face allegations of worker retaliation. For an evolving labor movement, this leaves Free Speech impaired. And while workers struggle to have their voices heard by the American legal system, employers seem to have no issue exercising their rights to Free Speech, even to a dangerous extent.

A call for clarity – Free Speech in the workplace

Although the First Amendment protects citizens from Free Speech infringements by the government, private corporations can still restrict certain speech within the workplace. For workers who want to organize, an entirely different body of jurisprudence defines the rules of expression. 

Legally, employers have significant leniency when persuading employees not to unionize. Even the speech of employers accused of spreading disinformation is protected by the First Amendment. This conflicts with the spirit of American labor law, which is supposed to create equal bargaining power between unions and employers. But as employers are given essentially free reign over the workplace, a fundamental unbalanced bargaining power persists between those seeking to organize and employers wishing to curtail their efforts. 

For example, Amazon and Starbucks have flooded their worksites with anti-union materials, including required videos and bulletins intended to deter workers from organizing. In May 2022, Starbucks heavily advertised new raises and benefits for its employees, but only for non-union locations, a move that labor activists immediately argued was illegal. 

Similar accusations against Amazon reflect the discrepancy of Free Speech in the workplace. In 2015, several technicians reported that one of Amazon’s “Employee Resource Centers” acted as a counter to a possible union vote in the Chester, Virginia, warehouse, purposefully talking with workers to find out their stance on unions and firing any sympathizers. Several technicians even remembered being told, “you vote for a union, every one of you will be looking for a job tomorrow.” 

Before a union vote in Bessemer, Alabama, in March 2022, Amazon pushed anti-union messaging across the jobsite, conducting required meetings for all workers, sending out “vote NO” message blasts, and creating a website dedicated to anti-union materials. 

Nonetheless, the legality of these types of activities by employers remains ambiguous. While some argue that they violate the NLRA and create a “real fear” for workers, others see the actions as part of Amazon’s legal rights to control its own workplace and exercise its own corporate right to Free Speech. 

There are many views on this dynamic. Industry groups like the U.S. Chamber of Commerce have emphasized an employer’s right to share “true facts” with employees about the “costs of unionization,” such as a union’s requirement that members  pay dues, “interference with employer-employee relationships,” “prioritization of the collective over the individual,” and other “financial impacts.” 

Charlotte Garden, an associate professor of labor law at Seattle University School of Law, argues that “limited and patchy” legal protections allow employers to “monopolize” Free Speech in the workplace. Because of this unbalanced power dynamic, Garden claims, “the freedom of speech that so many Americans valorize is in practical effect illusory for many American workers.” 

Tom Spiggle, an employment lawyer and Forbes senior contributor, said that even if no federal statute unilaterally protects workers’ Free Speech rights, employers do not have free reign to hire or fire as they see fit, adding that unreasonable rules or policies, if taken too far, can harm businesses and lead to public outrage, boycotts, negative publicity, drops in sales, and worker animosity. 

While various regulations prevent employers from firing workers without just cause, including state laws, civil rights protections, and “concerted activity” protections by the NLRA, “There’s nothing in the Constitution that says you have freedom of speech at work. But that doesn’t mean you can’t speak your mind, under the right circumstances,” Spiggle said. 

An underfunded NLRB, an inadequate labor law enforcement system, and a lack of explicit Free Speech protections for organizing workers, weakens the ability of Americans to exercise their everyday rights. 

For the sake of equality and a better life for all Americans, Free Speech must become the core value of the labor movement. Without it, a crucial disparity between America’s largest corporations and the workers that maintain them will continue to grow.