This post was updated on .
Justice Brandeis - concurring opinion, excerpt:
This court has not yet fixed the standard by which to determine when a danger shall be deemed clear; how remote the danger may be and yet be deemed present; and what degree of evil shall be deemed sufficiently substantial to justify resort to abridgment of free speech and assembly as the means of protection. To reach sound conclusions on these matters, we must bear in mind why a state is, ordinarily, denied the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence. [274 U.S. 357, 375]
Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to the secret of happiness and courage to be the secret of liberty.
They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. 3
They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.
Believing in the power of reason as applied through public discussion, they eschewed silence [274 U.S. 357, 376] coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.
Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. 4 Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of lawbreaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind.
In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated. [274 U.S. 357, 377]
Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.
U.S. Supreme Court
SHEET METAL WORKERS v. LYNN, 488 U.S. 347 (1989) 488 U.S. 347
SHEET METAL WORKERS' INTERNATIONAL ASSN. ET AL. v. LYNN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued November 7, 1988
Decided January 18, 1989
In an attempt to alleviate a financial crisis plaguing petitioner local union (Local), which is an affiliate of petitioner international union (International), the International's president appointed Richard Hawkins as trustee to supervise the Local's affairs, with authority under the International's constitution to suspend the Local's officers and business representatives. Five days after a special meeting at which the Local's membership defeated Hawkins' proposal to increase their dues, Hawkins notified respondent Lynn, an elected business representative of the Local, that he was being removed "indefinitely" from his position because of his outspoken opposition to the proposal at the meeting. After exhausting his intraunion remedies, Lynn brought suit in Federal District Court, claiming that his removal violated the free speech provision of Title I of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA or Act). The court granted summary judgment for petitioners under Finnegan v. Leu, 456 U.S. 431 , which held that the discharge of a union's appointed business agents by the union president, following his election over the incumbent for whom the business agents had campaigned, did not violate Title I. However, the Court of Appeals reversed, holding that Finnegan did not control where the dismissed union official was elected rather than appointed, and rejecting the contention that Lynn's removal was valid because it was carried out under Hawkins' authority as trustee.
The removal of an elected business agent, in retaliation for statements he made at a union meeting in opposition to a dues increase sought by the union trustee, violates the LMRDA. Pp. 352-359.
U.S. Supreme Court
FIRST NATIONAL BANK OF BOSTON v. BELLOTTI, 435 U.S. 765 (1978) 435 U.S. 765
FIRST NATIONAL BANK OF BOSTON ET AL. v. BELLOTTI, ATTORNEY GENERAL OF
APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS
Argued November 9, 1977
Decided April 26, 1978
Appellants, national banking associations and business corporations, wanted to spend money to publicize their views opposing a referendum proposal to amend the Massachusetts Constitution to authorize the legislature to enact a graduated personal income tax. They brought this action challenging the constitutionality of a Massachusetts criminal statute that prohibited them and other specified business corporations from making contributions or expenditures "for the purpose of . . . influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation." The statute specified that "[n]o question submitted to the voters solely concerning the taxation of the income, property or transactions of individuals shall be deemed materially to affect the property, business or assets of the corporation." On April 26, 1976, the case was submitted to a single Justice of the Supreme Judicial Court of Massachusetts on an expedited basis and upon agreed facts. Judgment was reserved and the case was referred to the full court. On September 22, 1976, the court directed entry of a judgment for appellee and issued its opinion upholding the constitutionality of the statute after the referendum, at which the proposal was rejected. Held:
1. The case is not rendered moot by the fact that the 1976 referendum has been held and the proposal for a constitutional amendment defeated. The 18-month interval between legislative authorization of placement of the proposal on the ballot and its submission to the voters was too short for appellants to obtain complete judicial review, and likely would be too short in any future challenge to the statute; and in view of the number of times that such a proposal has been submitted to the electorate, there is reasonable expectation that appellants again will be subjected to the threat of prosecution under the statute. Weinstein v. Bradford, 423 U.S. 147, 149 . Pp. 774-775.
2. The portion of the Massachusetts statute at issue violates the First Amendment as made applicable to the States by the Fourteenth. Pp. 775-795. [435 U.S. 765, 766]
(a) The expression proposed by appellants, namely, the expression of views on an issue of public importance, is at the heart of the First Amendment's concern. There is no support in the First or Fourteenth Amendment, or in this Court's decisions, for the proposition that such speech loses the protection otherwise afforded it by the First Amendment simply because its source is a corporation that cannot prove, to a court's satisfaction, a material effect on its business. Although appellee suggests that this Court's decisions generally have extended First Amendment rights only to corporations in the business of communications or which foster the self-expression of individuals, those decisions were not based on the rationale that the challenged communication materially affected the company's business. They were based, at least in part, on the Amendment's protection of public discussion and the dissemination of information and ideas. Similarly, commercial speech is accorded some constitutional protection not so much because it pertains to the seller's business as because it furthers the societal interest in the "free flow of commercial information." Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 764 . Pp. 776-783.
(b) The asserted justifications for the challenged statute cannot survive the exacting scrutiny required when the legislative prohibition is directed at speech itself and speech on a public issue. This statute cannot be justified by the State's asserted interest in sustaining the active role of the individual citizen in the electoral process and preventing diminution of his confidence in government. Even if it were permissible to silence one segment of society upon a sufficient showing of imminent danger, there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts, or that there has been any threat to the confidence of the citizenry in government. And the risk of corruption perceived in this Court's decisions involving candidate elections is not present in a popular vote on a public issue. Nor can the statute be justified on the asserted ground that it protects the rights of shareholders whose views differ from those expressed by management on behalf of the corporation. The statute is both underinclusive and overinclusive in serving this purpose, and therefore could not be sustained even if the purpose itself were deemed compelling. Pp. 788-795.
371 Mass. 773, 359 N. E. 2d 1262, reversed.
POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, and STEVENS, JJ., joined. BURGER, C. J., filed a concurring opinion, post, p. 795. WHITE, J., filed a dissenting opinion, in [435 U.S. 765, 767] which BRENNAN and MARSHALL, JJ., joined, post, p. 802. REHNQUIST, J., filed a dissenting opinion, post, p. 822.
Francis H. Fox argued the cause for appellants. With him on the briefs was E. Susan Garsh.
Thomas R. Kiley, Assistant Attorney General of Massachusetts, argued the cause for appellee. With him on the brief were Francis X. Bellotti, Attorney General, pro se, and Stephen Schultz, Assistant Attorney General. *
This post was updated on .
CITIZENS UNITED v. FEC, U.S. Supreme Court, decided 1-21-10 at:
2. Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures. Hence, §441b's restrictions on such expenditures are invalid and cannot be applied to Hillary. Given this conclusion, the part of McConnell that upheld BCRA §203's extension of §441b's restrictions on independent corporate expenditures is also overruled. Pp. 20-51.
(a) Although the First Amendment provides that "Congress shall make no law ... abridging the freedom of speech," §441b's prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation. Because speech is an essential mechanism of democracy--it is the means to hold officials accountable to the people--political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest." WRTL, 551 U. S., at 464.
This language provides a sufficient framework for protecting the interests in this case. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion. Pp. 20-25.
The UBCJA has a very limited quasi-legislative role, limited to minor rule-making under the A.P.A. and Federal Registers guidelines. The same premise applies to the NLRB with their additional duty as a quasi-judicial body.
Neither however can usurp the roles of all three branches of government under the Federal Constitution and subsume the role of the legislature, executive or judicial branch and claim more rights than that allotted to the Government.
The UBC cannot criminalize free speech rights of Union Rank & File members, via fine, suspension or expulsion without violating the precedents established in Belotti or Citizens United. The UBCJA has no proprietary trades secrets, inventions, patents or processes to protect and none are filed on the record. The proscriptions of the Kevin Price case amplify all of the aforementioned cases.
CITIZENS UNITED v. FEC, U.S. Supreme Court, decided 1-21-10
If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech. If the antidistortion rationale were to be accepted, however, it would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form. The Government contends that Austin permits it to ban corporate expenditures for almost all forms of communication stemming from a corporation. See Part II-E, supra; Tr. of Oral Arg. 66 (Sept. 9, 2009); see also id., at 26-31 (Mar. 24, 2009). If Austin were correct, the Government could prohibit a corporation from expressing political views in media beyond those presented here, such as by printing books. The Government responds "that the FEC has never applied this statute to a book," and if it did, "there would be quite [a] good as-applied challenge." Tr. of Oral Arg. 65 (Sept. 9, 2009). This troubling assertion of brooding governmental power cannot be reconciled with the confidence and stability in civic discourse that the First Amendment must secure.
Political speech is "indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual." Bellotti, 435 U. S., at 777 (footnote omitted); see ibid. (the worth of speech "does not depend upon the identity of its source, whether corporation, association, union, or individual"); Buckley, 424 U. S., at 48-49 ("[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment"); Automobile Workers, 352 U. S., at 597 (Douglas, J., dissenting); CIO, 335 U. S., at 154-155 (Rutledge, J., concurring in result). This protection for speech is inconsistent with Austin's antidistortion rationale. Austin sought to defend the antidistortion rationale as a means to prevent corporations from obtaining " 'an unfair advantage in the political marketplace' " by using " 'resources amassed in the economic marketplace.' " 494 U. S., at 659 (quoting MCFL, supra, at 257). But Buckley rejected the premise that the Government has an interest "in equalizing the relative ability of individuals and groups to influence the outcome of elections." 424 U. S., at 48; see Bellotti, supra, at 791, n. 30. Buckley was specific in stating that "the skyrocketing cost of political campaigns" could not sustain the governmental prohibition. 424 U. S., at 26. The First Amendment's protections do not depend on the speaker's "financial ability to engage in public discussion." Id., at 49.
See case's for 'time, place and manner' as well, relative to the First Amendment and Free speech.
"If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech". Accordingly, the converse of this is also true.
NLRB - HARTFORD OFFICE
Do Employees Have a Statutory Right to Make Secret Audio Recordings in the Workplace?
by Jeffrey M. Place on February 24, 2011
On Valentine’s Day, 2011, the Board held that an employer violated the National Labor Relations Act when it fired an employee for carrying a hidden audio recorder into a meeting where the employee claimed he reasonably believed he would be denied rights guaranteed to him under the Act. Surprisingly, the Board implied that any work rule prohibiting employees from making clandestine audio recordings in the workplace might be deemed unlawful, if the rule did not include an express exception for recordings made in an effort to protect or advance employee rights under Section 7.
In Hawaii Tribune-Herald, 356 NLRB No. 63 (2011), an employee made a clandestine audio recording of a meeting with his supervisor, after the supervisor refused to allow the employee to bring a union representative to the meeting. The employee claimed he believed the meeting might result in discipline and that the company was violating his Weingarten rights by refusing to allow him to bring a witness to the meeting. A union representative advised the employee to take detailed notes during the meeting, but, following discussions with coworkers, the employee decided instead to secretly tape record the meeting. The employee borrowed a voice recorder from a coworker and concealed it in his pocket during the meeting. At the meeting, the employee’s supervisor verbally warned him about low productivity.
Several days later, one of the employee’s coworkers notified the supervisor that the employee had secretly recorded the meeting. The supervisor interviewed the employee who made the recording and several of the employees who had advised him to make the recording. The supervisor referred to the decision to secretly record the meeting as “the biggest act of disloyalty he had ever seen.” The supervisor suspended the employee who made the recording and the reporter who loaned the voice recorder to the employee. The company later discharged the employee who made the recording. A few days later, the newspaper’s publisher issued a blanket prohibition against the making of secret audio recordings.
The Board found that prior to the meeting with his supervisor, the discharged employee had discussed with his coworkers his belief that his employer was violating his Weingarten rights and had agreed with his coworkers upon the plan to secretly record the meeting. The Board therefore concluded that the employee was engaged in protected concerted activity when he recorded the meeting. The only question, the Board stated, was whether the employee’s conduct in making the recording was “sufficiently egregious to remove [him] from the protection of the Act.” The Board noted that the employer had no pre-existing rule prohibiting employees from secretly recording others in the workplace and the employee’s conduct was not illegal under state law. Under those circumstances, the Board concluded that the employee retained the protection of the Act, and his suspension and subsequent discharge were therefore unlawful.
In the “remedy” portion of its decision, the Board went on to state that the prohibition against the making of secret audio recordings was “overly broad,” and ordered the employer to both rescind the rule and notify its employees of the rescission. The Board did not explain why employees would have a protected right under the Act to make “secret recordings” in the workplace. The Administrative Law Judge apparently concluded that the rule prohibiting secret recordings was unlawful because it was promulgated in direct response to concerted activity. Yet, the Board’s reliance on the fact that the employer did not have any preexisting rule against making such recordings suggests that, had such a rule been promulgated and consistently enforced in advance of the concerted activity at issue here, the preexisting rule could conceivably have been enforced without violating the Act. The decision did not indicate how the Board would have ruled if the surreptitious recording had been in violation of state law, such as would have been the case had the conduct occurred in California, for example.
Employers considering the implications of the Hawaii Tribune-Herald decision should take two lessons from the case, one old and one fairly new. First, in most cases, it is risky for employers to create a new rule to address union-related activity in the workplace. Employers that encounter union organizing, misconduct by stewards, aggressive behavior by outside union representatives, or simple misconduct by union adherents are often in a better position when they apply existing work rules and company procedures – and rely in appropriate cases on remedies available in civil and criminal law.
Second, the Board has recently actively relied on the “overly broad rule” position. General handbook rules of all types – including many rules thought either necessary or advisable to ensure compliance with anti-discrimination and anti-harassment statutes, as well as with the nascent anti-bullying agenda in some states – are coming under scrutiny from the Board for their potential “chilling” effect on employee exercise of Section 7 rights. The Board’s willingness to suggest in its remedy analysis in this case that there may be a right under Section 7 for employees to make clandestine audio recordings in the workplace shows that a very broad reading of employee Section 7 rights, when coupled with the Board’s “overly broad rule” analysis, could jeopardize the validity of almost any kind of general rule of good conduct.
NLRB General Counsel's Office Releases Report on Social Media Cases
by Stefan Marculewicz on August 18, 2011
The National Labor Relations Board’s Office of the General Counsel has released a report (pdf) that summarizes the outcomes and reasoning behind the 14 cases decided within the past year involving employees’ use of social media and the legality of employers’ social media policies. The cases involved such social media platforms as Facebook, Twitter and YouTube, but the report also notes that social media includes text, audio, video, images, podcasts, and other multimedia communications that “enable people to communicate easily via the internet to share information and resources.” Of the cases detailed in the report, the NLRB’s Division of Advice (Division) found that four involved Facebook or Twitter posts that constituted “protected concerted activity;” five involved social media use that did not warrant NLRA protection; five dealt with employer social media policies that were found to be overbroad; one concerned an employer’s policy that was held to be valid; and one involved a union’s use of YouTube that was determined to be unlawful coercive activity.
While the report does not provide any hard and fast rules for employers, taken as a whole, the various decisions appear to establish the following guidelines:
•An employee’s social media use is likely to be considered protected concerted activity if the comments/posts: (a) involve the terms and conditions of employment; (b) constitute an “outgrowth” of an earlier discussion about the terms and conditions of work among co-workers; and (c) involve or are directed to fellow coworkers to invite or induce further action.
•The cases where the Division found that an employee’s Facebook or Twitter posts constituted protected activity involved topics such as job performance, staffing levels, protests of supervisory actions, criticisms of an employer’s promotional event that employees believed would negatively impact their sales commission; and shared concerns about income tax withholdings.
•In contrast, simple complaints about working conditions, especially directed to non-coworkers, were found to be undeserving of NLRA protection. In one case, the Division found that a bartender who made negative comments about his employer’s tipping policy on Facebook was not engaged in concerted activity because he directed his comments to a non-coworker, and made them by and on behalf of himself only. Similarly, an employee who posted a comment critical of her employer on her senator’s Facebook wall was not acting in concert with her fellow employees. Moreover, individual gripes about the workplace posted on Facebook or Twitter – even if such posts result in fellow coworkers chiming in – do not rise to the level of concerted activity. In one such case, a retail store employee made several complaints via Facebook about his store’s management. The comments were not specifically directed to fellow employees, even though some who read his posts expressed their support or condolences over his dissatisfaction. The Division found that his complaints were over his individual situation and were not aimed to induce group action, and therefore not protected.
•Facebook or Twitter postings that could be considered a “direct outgrowth” of earlier employee discussions or complaints are more likely to be viewed as protected, concerted activity. In the cases where the Board found the social media use to be protected, the electronic discussions were preceded by face-to-face employee discussions or shared concerns about working conditions.
•Even inappropriate comments can merit protection. In one case, an employee used profanity when referring to the company’s owners and questioned the employer’s ability to do paperwork correctly. The Board rejected the employer’s defamation claim, as “an alleged defamatory statement will not lose its protected status unless it is not only false but maliciously false” – a fairly steep hurdle.
•Offensive or inappropriate comments directed at an employer’s clients, however, are less likely to receive NLRA protection. In one case, for example, a reporter made inappropriate and unprofessional tweets on a work-related Twitter account. In other cases, a bartender and homeless facility worker made disparaging comments about their employers’ clientele. Such comments were not found to be protected.
•Social media policies must not be overbroad. In one case in which the Division found that an employer’s social media policy was overbroad and therefore unlawful, the offending policy included a provision that prohibited employees from posting pictures of themselves in any media, including the internet, that depicted the company in any way, including a company uniform or corporate logo. The Division found this to be overbroad in that it would effectively prohibit an employee from engaging in protected activity, such as posting a picture of employees carrying picket signs showing the company’s name or logo. In another case, an employer’s policy that prohibited “inappropriate discussions” about the company, management and/or coworkers was similarly found to be overbroad. Similarly, a policy that prohibited employees on their own time from using micro-blogging features to talk about company business on their personal accounts; from posting anything that they would not want their manager or supervisor to see or that would put their job in jeopardy; from disclosing inappropriate or sensitive information about the employer; and from posting any pictures or comments involving the company or its employees that could be construed as inappropriate was found to be overly broad, as it could reasonably be construed to prohibit an employee’s Section 7 rights.
•Employers should include limiting language in their social media policies. The Division found that social media and standards-of-conduct policy provisions that: (a) prohibited employees from making disparaging comments when discussing the company or the employee’s superiors, coworkers, and/or competitors; and (b) prohibited the use of language or action that was inappropriate or of a general offensive nature, and rude or discourteous behavior to a client or coworker to be unlawful because the policies failed to contain language informing employees that such provisions do not apply to Section 7 activity.
•Employers should make sure to define terms in their social media policy. In one case, the Division found that a provision in an employer’s social media policy that prohibited employees “from using any social media that may violate, compromise, or disregard the rights and reasonable expectations as to the privacy or confidentially of any person or entity” was overbroad because it “provided no definition or guidance as to what the Employer considered to be private or confidential,” and therefore could be interpreted as prohibiting protected employee discussion of wages and other terms and conditions of employment.
•Social media policies that are narrowly focused are more likely to be deemed lawful. In one instance, the Division found that an employer’s policy that prohibited employees from pressuring their coworkers to connect or communicate with them through social media was valid as it “was narrowly drawn to restrict harassing conduct and could not reasonably be construed to interfere with protected activity.” Similarly, the Division found that an employer’s rule that restricted employee contacts with the media was lawful, as the purpose of the rule was to ensure that only one person spoke for the company, and the rule could not be interpreted to prohibit employees from speaking on their own behalf with reporters.
While the NLRB Acting General Counsel’s Report has provided some guidance to help employers understand the parameters of employer and employee rights in connection with the use of social media, it is important to consider each situation individually. The laws governing social media and its interaction with the workplace are rapidly evolving and employers should maintain a constant vigilance to ensure that they are in compliance.
For more information on this Report, see Littler's ASAP: The NLRB and Social Media: General Counsel's New Report Offers Employers Some Guidance by Mark Robbins and Jennifer Mora.
Photo credit: Warchi
Northeastern Land Services v. NLRB, 130 s. Ct. 3498, 177 L. Ed. 2d, 1085, 2010, U.S. LEXIS 5339 (U.S. 2010) at:
B. Overbreadth of the Confidentiality Provision
Section 8 of the NLRA prohibits employers from "interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in" section 7 of the NLRA. 29 U.S.C. § 158(a)(1). Section 7 guarantees employees the right to "self organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their [*16] own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157.
Section 8(a)(1) has been read to bar employer interference with employees' right to discuss the terms and conditions of their employment with others under section 7 of the NLRA. See Beth Israel Hosp. v. NLRB, 437 U.S. 483, 491, 98 S. Ct. 2463, 57 L. Ed. 2d 370 (1978) ("[T]he right of employees to self organize and bargain collectively established by § 7 . . . necessarily encompasses the right effectively to communicate with one another regarding self organization at the jobsite."); Cent. Hardware Co. v. NLRB, 407 U.S. 539, 543, 92 S. Ct. 2238, 33 L. Ed. 2d 122 (1972) ("[O]rganization rights are not viable in a vacuum; their effectiveness depends in some measure on the ability of employees to learn the advantages and disadvantages of organization from others.").
An employer violates section 8(a)(1) when it maintains a work rule that "would reasonably tend to chill employees in the exercise of their Section 7 rights." Lafayette Park Hotel, 326 N.L.R.B. 824, 825 (1998). Under the Board's caselaw, if the rule is "likely to have a chilling effect on Section 7 rights, the Board may conclude that [its] maintenance [*17] is an unfair labor practice, even absent evidence of enforcement." Id.; see also Guardsmark, LLC v. NLRB 374 U.S. App. D.C. 360, 475 F.3d 369, 374-80 (D.C. Cir. 2007) (explaining and applying Lafayette Park "mere maintenance" rule).
NLS contends that the confidentiality provision did not violate the NLRA because, as a factual matter, it did not prohibit employees from discussing terms of employment among themselves and, although it was enforced, it was not enforced in the face of union activity. NLS asserts that mere broad wording, without evidence of actual chilling of union activity, is insufficient to violate section 8(a)(1).
NLS then makes a qualitatively different argument: that the Board must engage in a balancing test. Here, NLS contends the Board failed to consider the legitimate justification it had for the confidentiality provision: labor costs were a key component of its bids to clients, and NLS did not want its employees jeopardizing its bids. NLS's arguments, however, are at odds with current Board precedent.
After the ALJ ruling and before the Board rendered its decision here, the Board decided Lutheran Heritage, 343 N.L.R.B. 646 (2004). Lutheran Heritage clarified the nature of the Board's inquiry [*18] and confirmed the Board's prior caselaw that "mere maintenance" of a rule that "would reasonably tend to chill employees in the exercise of their Section 7 rights" is unlawful under Board caselaw, Lafayette Park, 326 N.L.R.B. at 825, and that there need not be any evidence of actual chilling of union activity as NLS claims.
In Lutheran Heritage, the Board articulated a two-step framework for determining whether an employer's maintenance of a work rule violates section 8(a)(1). First, if the rule explicitly restricts section 7 activity, it is unlawful. Id. at 646. Second, even if the rule does not explicitly restrict section 7 activity, it is nonetheless unlawful if "(1) employees would reasonably construe the language [of the rule] to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights." Id. at 647.
Here, the Board relied on the first prong of the second part of the test. It found that although the NLS rule did not explicitly restrict section 7 activity, employees would reasonably construe the language of the rule to prohibit section 7 activity under Lutheran Heritage. The [*19] plain language of the confidentiality provision provides: "Disclosure of these terms [of employment] to other parties may constitute grounds for dismissal." The Board's finding that this language could be fairly read to extend to disclosure of terms of employment to union representatives is supportable. The precise subject matter of the forbidden disclosure -- terms of employment, including compensation -- went to a prime area of concern under section 7. n3
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NLS asserts that the confidentiality provision is lawful because the plain text of the provision did not forbid employees from talking to each other or to union organizers. This argument fails to address the Board's Lutheran Heritage analysis, which holds that a provision is unlawful if employees would reasonably believe it forbids such communication.
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The Board's interpretation was consistent with its prior caselaw. n4 See Cintas Corp., 344 N.L.R.B. 943, 943 (2005) (finding overbroad a confidentiality provision prohibiting "the release of 'any information' regarding '[the company's] partners' [because it] could be reasonably construed by employees to restrict discussion of wages and other terms and conditions of employment with their [*20] fellow employees and with the Union"), enforced, 375 U.S. App. D.C. 371, 482 F.3d 463 (D.C. Cir. 2007).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -4
NLS alludes to but does not develop an argument that the Board's result is inconsistent with the prior caselaw, as demonstrated by the ALJ's reading of the caselaw. We set aside NLS's waiver and consider the point. We find no such inconsistency.
In interpreting NLS's provision as a "less serious infringement on its employees' Section 7 rights," the ALJ relied on cases involving more narrowly drafted confidentiality provisions than the one at issue here. See, e.g., K Mart, 330 N.L.R.B. 263 (1999) (prohibition on disclosing "company business and documents" did not by its terms include employee wages or working conditions and made no reference to employee information); Lafayette Park Hotel, 326 N.L.R.B. at 826 (rule banning discussion of "hotel private" information that did not on its face cover employee wage discussion). Furthermore, under Lafayette Park and Lutheran Heritage's "mere maintenance" rule, the Board did not need to consider the employer's reasons for the rule. Cf. Desert Palace, Inc., 336 N.L.R.B. 271, 272 (2001), (upholding employer's policy of confidentiality on matters relating to its investigation [*21] of an allegation that an employee was dealing drugs). Furthermore, since its 1990 decision in Kinder Care Learning Ctrs., Inc., 299 N.L.R.B. 1171 (1990), the Board has consistently held that when a rule's plain language restricts employees' ability to communicate their conditions of employment to third parties it violates section 8(a)(1). Id. at 1172 (finding ban on "parent communication" unlawful).
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NLS argues that the Board should have considered that the confidentiality provision was justified by legitimate business reasons, citing Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S. Ct. 982, 89 L. Ed. 1372 (1945). See id. at 798 (noting that in section 7 analysis "[o]pportunity to organize and proper discipline are both essential elements in a balanced society"); see also Tex. Instruments, Inc. v. NLRB, 637 F.2d 822, 833 (1st Cir. 1981). Nothing in Republic Aviation compelled the Board to apply a balancing test here. While the Board could have chosen to structure its rule differently and engage in a balancing analysis, we owe deference to its decision not to do so. Further, as a practical matter, a more narrowly drafted provision would be sufficient to accomplish NLS's goal in maintaining confidentiality in bidding [*22] for contracts. See, e.g., Cintas Corp., 482 F.3d at 470 ("A more narrowly tailored rule that does not interfere with protected employee activity would be sufficient to accomplish the Company's presumed interest in protecting confidential information."). We cannot say the Board's interpretation was unreasonable. Some may think this result unattractive, but the Board's rule is intended to be prophylactic and in any event is subject to deference.
This post was updated on .
I am having trouble embedding the MEMORANDUM AND ORDER ISSUING PRELIMINARY INJUNCTION for Andrew Price. You can click here to read the order.
As to the irreparable injury and inadequate remedy at law, the federal courts have consistently held that the potential chilling effect on free speech constitutes a clear threat of irreparable harm, for which there is no adequate legal remedy. Indeed, in Christian Legal Society v. Walker , 453 F.3d 853, 859 (7 Cir. 2006), the Seventh Circuit stressed:
“The loss of First Amendment freedoms is presumed to constitute an irreparable injury for which money damages are not adequate and injunctions protecting
First Amendment freedoms are always in the public interest.”
Id. (emphasis added), citing Joelner v. Village of Washington Park, 378 F.3d 613, 620 (7th Cir. 2004), and Elrod v. Burns, 427 U.S. 347, 373 (1976)(“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”). Accord Brownsburg Area Patrons Affecting Change v. Baldwin , 137 F.3d 503, 507 (7th Cir. 1998).
Plaintiff has met his burden of demonstrating that he will suffer irreparableharm in the absence of preliminary injunctive relief and that he lacks an adequate legal remedy. The pending charges target his protected expression, and the anxiety of the trialand potential fine inhibit his speech. Defendants’ actions also have a chilling effect on thespeech of other union members who may want to voice their opposition to Local 57 but fear that they risk being subjected to charges and trial, like Plaintiff Price – who is an elected delegate serving on the District Council. As the United States Supreme Court declared in the context of the discipline and ultimate removal of an elected union official:
[T]he potential chilling effect on Title I free speech rights is more pronounced when elected officials are discharged. Not only is the fired official likely to be chilled in the exercise of his free speech rights, but so are the members who voted for him.... Seeing Lynn removed from his post just five days afterhe led the fight to defeat yet another dues increase proposal, other members of the Local may well have concluded that onechallenged the union’s hierarchy, if at all, at one’s peril. This is precisely what Congress sought to prevent when it passed the LMRDA. “It recognized that democracy would beassured only if union members are free to discuss union policies and criticize the leadership without fear or reprisal.”-7-Sheet Metal Workers’ International Association v. Lynn, 488 U.S. 347, 355 (1989), quoting United Steelworkers of America v. Sadlowski, 457 U.S. 102, 112 (1982).
Irreparable injury and inadequate legal remedy have been demonstrated here. Next, the Court finds that Price has a reasonable likelihood of success on the merits. Section 101(a)(2) of the LMRDA, 29 U.S.C. § 411(a)(2), provides:
Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings.
In a recent unreported opinion (which discusses Supreme Court cases interpreting the LMRDA), the Seventh Circuit explained the goal of this provision. Title I of the LMRDA developed from legislation “aimed at enlarged protection for members of unions paralleling certain rights guaranteed by the Federal Constitution,” and restates “a principal First Amendment value-the right to speak one's mind without fear of reprisal.” Marshall v. Local 701 Intern. Broth. of Elec. Workers, – F.3d –, 2010 WL 2853348 at *3 (7th Cir. July 21, 2010), citing Finnegan v. Leu, 456 U.S. 431, 435 (1982), and quoting Sadlowski,457 U.S. at 111.
In providing these protections, “Congress sought to further the basic objective of the LMRDA: ‘ensuring that unions are democratically governed and responsive to the will of their memberships.’“ Marshall, 2010 WL 2853348 at *3, quoting Lynn, 488 U.S. at 352, and
Finnegan, 456 U.S. at 436.
TENNEY v. BRANDHOVE 341 US 367 (1951)
MR. JUSTICE DOUGLAS, dissenting.
I agree with the opinion of the Court as a statement of general principles governing the liability of legislative committees and members of the legislatures. But I do [341 U.S. 367, 382] not agree that all abuses of legislative committees are solely for the legislative body to police.
We are dealing here with a right protected by the Constitution - the right of free speech. The charge seems strained and difficult to sustain; but it is that a legislative committee brought the weight of its authority down on respondent for exercising his right of free speech. Reprisal for speaking is as much an abridgment as a prior restraint. If a committee departs so far from its domain to deprive a citizen of a right protected by the Constitution, I can think of no reason why it should be immune. Yet that is the extent of the liability sought to be imposed on petitioners under 8 U.S.C. 43. 1
It is speech and debate in the legislative department which our constitutional scheme makes privileged. Included, of course, are the actions of legislative committees that are authorized to conduct hearings or make investigations so as to lay the foundation for legislative action. But we are apparently holding today that the actions of those committees have no limits in the eyes of the law. May they depart with impunity from their legislative functions, sit as kangaroo courts, and try men for their loyalty and their political beliefs? May they substitute trial before committees for trial before juries? May they sit as a board of censors over industry, prepare their blacklists of citizens, and issue pronouncements as devastating as any bill of attainder?
No other public official has complete immunity for his actions. Even a policeman who exacts a confession by [341 U.S. 367, 383] force and violence can be held criminally liable under the Civil Rights Act, as we ruled only the other day in Williams v. United States, 341 U.S. 97 . Yet now we hold that no matter the extremes to which a legislative committee may go it is not answerable to an injured party under the civil rights legislation. That result is the necessary consequence of our ruling since the test of the statute, so far as material here, is whether a constitutional right has been impaired, not whether the domain of the committee was traditional. It is one thing to give great leeway to the legislative right of speech, debate, and investigation. But when a committee perverts its power, brings down on an individual the whole weight of government for an illegal or corrupt purpose, the reason for the immunity ends. It was indeed the purpose of this civil rights legislation to secure federal rights against invasion by officers and agents of the states. I see no reason why any officer of government should be higher than the Constitution from which all rights and privileges of an office obtain.
[ Footnote 1 ] "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." [341 U.S. 367, 384]
Without Freedom of Thought there can be no such Thing as Wisdom; and no such Thing as Public Liberty, without Freedom of Speech.
Benjamin Franklin, writing as Silence Dogood, No. 8, July 9, 1722
If by the liberty of the press were understood merely the liberty of discussing the propriety of public measures and political opinions, let us have as much of it as you please: But if it means the liberty of affronting, calumniating and defaming one another, I, for my part, own myself willing to part with my share of it, whenever our legislators shall please so to alter the law and shall chearfully consent to exchange my liberty of abusing others for the privilege of not being abused myself.
Benjamin Franklin, An Account of the Supremest Court of Judicature in Pennsylvania, viz. The Court of the Press, September 12, 1789
This post was updated on .
Federal judge strikes down suit against Craigslist
By Rebecca Fiss Jul 01 2009, 05:24 AM
In an outrageous fit of complete reasonableness, the federal court has ruled that online classified ads are not that much different than the kinds you might be able to turn pages with, or might see posted to a coffee house cork board. The message is clear. The technophiliac activism of the federal judiciary is clearly spiraling rapidly out of control.
As if there wasn’t enough suspicion surrounding Internet personal services and Craigslist.org already, we’ve been recently nudged even further along the path toward utter fear of communication technology by news pieces such as that of the so-called “Craigslist killer,” who was accused of bumping off a 26-year-old masseuse that he met in the “exotic services” section back in April.
Clearly, the blame rests with the provider of the ad, as opposed to its author, mastermind conspirators, or even the reader themselves. Which raises profound questions about the responsibilities of a techno-capable readership in handling clearly shady material, especially with the clearly posted warnings leering at them from the top of the screen. In short: does the modern internet-savvy public still have a right to their naivete?
Fortunately for the website, and for fans of cool-headed rational thinking in general, Southern District Judge Richard M. Berman doesn’t agree that Craigslist is culpable. The federal judge dismissed a lawsuit last month that blamed the site for a June 2008 shooting by Jesus Ortiz, the victim’s schizophrenic neighbor.
Calvin Gibson, a boutique owner, survived the ordeal and subsequently tried to sue Craigslist for $10 million, complaining that the site was “either unable or unwilling to allocate the necessary resources to monitor, police, maintain and properly supervise the goods and services” sold there and also requesting the "appointment of a federal monitor" to keep guns from being advertised. (Not to mention, you should see the exaggerations they let fly in those real estate ads! Walking distance to the Metro, my ass.)
Judge Berman dismissed the case on the grounds that Craigslist has immunity as an Internet service provider under the Communications Decency Act of 1996, 47 U.S.C. §230, which states that "no provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider."
"We weren't seeing Craigslist as a publisher,” Paul B. Dalnocky, Gibson’s attorney, responded. “We were seeing it as a regular business that should have monitored its business better. I mean, how can you run a business with millions of ads and have only 25 employees monitoring it?" If this is the problem, then what is the logical remedy? A quota for employee-to-customer ratio? Who could avoid slipping on that slope?
None too happy that the case was being dismissed, the plaintiff played the empathy card. The fact that the Craigslist didn’t offer any financial compensation, according to a plaintiff's statement, clearly showed that it “cares not a whit about the misery is causes.” Craigslist, the plaintiff wrote, is a “robber-baron” and “must be immediately regulated or shut down.”
The plaintiff, who acknowledged that "the content of the ad placed upon defendant's website was not, in itself, objectionable,” was fairly vague in specifying what kind of regulations it was shooting for. The plaintiff's argument, therefore, as Volokh.com explained, is that Craigslist should go even beyond reading each posting — or allowing users to flag them — and investigate each one to make sure the proposed transaction is not secretly illegal or dangerous.
Even without the potential $10 million in damages called for in the suit, losing the case would have crippled Craigslist's ability to function as the efficient “free market” celebrated in the Communications Decency Act; the online classifieds giant, which the Act says will be able to exist “unfettered by Federal or State regulation,” owes Judge Berman its skin. Everyone who's ever secured housing, cheap consumer goods or even inter-personal relationships through this service should heave a gigantic sigh of relief.
"no provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider."
Accordingly....when 157blogspot provides a story written by Crains or any other publisher or content provider, liability does not attach nor can he be brought up on phony charges by the DC's President under this precedent or under any other first amendment or free speech claim or right, all of which clearly & unequivocally trump the venerable "UBC Constitution". Despite decades of known precedent and landmark cases, the UBCJA refuses to expunge (on a line item basis) policies long held to be illegal per Board, Appellate Court & Supreme Court case law.
Game, Set, Match!
HOW LONG HAVE YOUR FREE SPEECH RIGHTS, THE RIGHT TO VOTE & RATIFY CONTRACTS BEEN SQUELCHED BY KING DOUG?
VOTE NO ON ALL MOU's & PROPOSED CONTRACTS.....USE IT OR LOSE IT!
On July 25, 2012 at a schedule Delegate Body meeting, District Council employees, EST Mike Bilello and President Bill Lebo, conducted themselves in a disgraceful way that was unwelcome, within a few minutes, publicly, lies were spread against me,“vexatious, personal and indecorous” comments were made, members of the Delegate Body were incited, and I was intimidated, harassed, humiliated, threatened and had charges filed against me.
The conduct of both Bilello and Lebo, not only violates the Stipulation and Order, the Laws of the UBC, but also violates the “Anti-Harassment Policy” incorporated into the Councils “Personnel Policy Manual” for employees.
A harassment complaint has been filed with the Human Resources Director, of the New York City District Council of Carpenters requesting an investigation be conducted pursuit to the “Anti-Harassment Policy” and have the appropriate disciplinary action taken.
Immediate relief is necessary so that fellow union members may exercise their free speech rights without fear of harassment and retaliation.
Ted, the simple post is this. The UBC Constitution DOES NOT trump the US Constitution.
It may be true as a general qualifer/statement. However, should you ever be brought to the UBCJA or your DC's phony kangaroo court system and use that line as your entire defense & provide nothing more - well then, you lose.
I have posted some very basic cases for those whose right to earn a living as a UBC Carpenter are being trampled upon and violated, so they may have a fighting chance to defend themselves should they do so w/o an attorney.
FCC TO MONITOR NEWSROOMS
In a frightening development truly reminiscent of George Orwell’s Big Brother, the FCC has plans to invade newsrooms around the nation with government contractors who will survey the outlets' products and decide if they meet Americans’ "critical information needs."
FCC commissioner Mignon Clyburn, who was appointed to the FCC by Barack Obama and is the daughter of House Democratic Rep. James Clyburn, said in 2012, "This study begins the charting of a course to a more effective delivery of necessary information to all citizens… [the FCC] must emphatically insist that we leave no American behind when it comes to meeting the needs of those in varied and vibrant communities of our nation – be they native born, immigrant, disabled, non-English speaking, low-income, or other."
Who determines what the nation's “critical needs” are? The Obama administration.
The plan is referred to as "the CIN Study." Ajit Pai, one of the FCC's five commissioners (and one of two Republicans), condemned the action, saying, "This has never been put to an FCC vote; it was just announced. I've never had any input into the process."
The University of Southern California Annenberg School for Communication & Journalism and the University of Wisconsin-Madison Center for Communication and Democracy were commissioned to decipher which bits of information are "critical" for citizens to have. Their answer: Information so Americans can "live safe and healthy lives" and "have full access to educational, employment, and business opportunities."
Eight "critical needs" for information (CINs) were listed: for emergencies and risks, health and welfare, the environment, education, transportation, economic opportunities, civic information, and political information.
Pai cautioned, "An enterprising regulator could run wild with a lot of these topics. The implicit message to the newsroom is they need to start covering these eight categories in a certain way or otherwise the FCC will go after them."
The FCC bestowed its largesse on a Maryland-based company called Social Solutions International to study the feasibility of the invasive procedure. In April 2013, Social Solutions responded, delineating exactly how the FCC’s minions would interview members of the news profession. Its report stated, "The purpose of these interviews is to ascertain the process by which stories are selected…” News organizations would have to explain their "station priorities (for content, production quality, and populations served), perceived station bias, perceived percent of news dedicated to each of the eight CINs, and perceived responsiveness to under-served populations."
To make matters even darker, the FCC wants to monitor newspapers, which are not in its jurisdiction. Last December, the four top Republicans on the House Energy and Commerce Committee targeted the FCC for scrutiny, saying, "The Commission has no business probing the news media's editorial judgment and expertise, nor does it have any business in prescribing a set diet of 'critical information.'"
"Congress shall make no law… abridging the freedom of speech, or of the press…" says the First Amendment. For an Administration that mocks the Constitution at every turn, those words appear to have no meaning.
Well, Obama & his socialist/marxist cohorts quite obviously do not believe in freedom of speech nor do they believe anyone but them is smart enough to think for themselves. This alleged Harvard Constitutional scholar looks dumber every day notwithstanding the chill the liberal media feel down their legs every time he speaks or acts. Score one for the little guy, that is - until they devise another scheme to bring this one back. Every day he's in office only provides further rationale for immediate impeachment given every thing he stands for and does is generally treasonous.
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