Labor Law and Free Speech: The Curious Policy of Limited Expression

Labor relations is the one area of law in which the policies of thefirst amendment have been consistently ignored, reduced, and held to beoutweighed by other interests. A policy of limited expression has beenapplied to pure speech and symbolic speech, to consumer picketing andemployee boycotts, to political action and to the organizational activitiesof both labor and management.\u27 It has been woodenly applied bythe National Labor Relations Board (Board), routinely enforced by thecourts of appeals, and given its major impetus by the Supreme Court ina series of opinions notable for their failure to explain, rationalize, distinguish,or articulate useful standards.\u27 The approach taken in laborcases is in marked contrast to the Court\u27s traditional commitment tofreedom of expression, to its recent decisions expanding the constitutionalprotection given to commercial speech, and to its recentlandmark decision, NAACP v. Claiborne Hardware Co .,6 finding politicalboycotts to be constitutionally protected when undertaken for the causeof racial equality

The National Labor Relations Act: What Went Wrong; Can We Fix It?

When the National Labor Relations Act ( NLRA ) was enacted, both labor and management believed that it would pave the way for unionization and the spread of collective bargaining. The key provisions that led to such great hopes by unions and their supporters remain in force, but after many years of working with the NLRA, optimism has given way to cynicism and despair about the law\u27s ability to protect workers and enhance collective bargaining. This Essay provides tentative suggestions for structuring a legislative agenda that would make basic labor law more even handed and protective of basic worker rights. Recognizing that basic labor law is currently not a friend to unions, the Essay concludes that even though efforts to improve it are likely to meet with significant resistance, they are, nevertheless, worth the effort