In 1969’s NLRB v. Gissel Packing Co., the Supreme Court ruled that “an employer may communicate to his employees any of his general views on unionism and his specific views about a particular union, as long as there is no ‘threat of reprisal or force or promise of benefit.’” (The Court was quoting language inserted into the NLRA by the Taft-Hartley Act.) An employer may even “predict the precise effects he believes unionization will have on his company if the prediction is based on objective fact to convey his belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization.” He may not, however, engage in “brinksmanship” or make “conscious overstatements.”
Threats, exaggerations, and honest predictions are indeed different things — if they’re communicated clearly and the underlying facts are not debatable. But in union elections, clarity isn’t the norm; rather, each side steps as close to the legal line as possible. This means that employers do everything they can to emphasize the economic disadvantages of unions, that unions try to paint these comments as implied threats or promises, and that the NLRB and the courts are expected to sort it out.
The Boeing case raises one such issue. As the general counsel’s complaint notes, Boeing executives made various public statements explicitly tying the union plant’s history of strikes to the decision to locate the new capacity elsewhere — and according to the general counsel, this means Boeing “threatened or impliedly threatened that the Unit would lose additional work in the event of future strikes.” Boeing, of course, denies that its statements were threats, and further says they are protected by the First Amendment.
It’s easy to take Boeing’s side. Workers at the Washington plant struck in 1977, 1989, 1995, 2005, and 2008, and it would be insane to expect the company to ignore that fact in deciding where to expand. The company officials were merely stating the obvious. But the statements did explicitly connect the action of striking with a consequence of lost work opportunities — which does arguably “interfere with” the right to strike, or discourage employees from exercising it. The law itself, which protects a “right” to shut down one’s employer’s operations without facing any consequences, is the problem.
Even in cases where it’s clear that speech is protected by the First Amendment, that speech can still be held against an employer under the NLRA. Typically, to prove discrimination, a union member has to demonstrate motive, or “anti-union animus.” This, however, runs into the same problem we see with racial anti-discrimination laws: If the business says it fired, disciplined, or refused to promote a worker for incompetence, how can an employee prove otherwise?
Often, employees resort to anti-union statements made by managers that, while protected by the First Amendment, show that the management doesn’t like unions. Some circuits of the federal court system have decided to completely ban the use of these statements as evidence, but others have not. For example, in an often-cited 1963 case, the Fifth Circuit allowed statements in which a company “made no bones about its opposition to the Union” to be used as “background” in a case. To this day, the “circuit split” has not been resolved, and the NLRB allows these statements to be used in the cases it hears, regardless of which circuit the business is located in.