Chamber of Commerce v. Brown: Protecting Free Debate on Unionization, by William J. Kilberg and Jennifer J. Schulp


Congress enacted the National Labor Relations Act in 1935 to

provide uniform federal regulation of the relationship between labor unions and management.1 As originally enacted, the NLRA strictly regulated employer conduct, but did not impose the same level of regulation (or similar prohibitions) on unions themselves. Just over a decade later, Congress amended the NLRA to respond to the

growing imbalance of power that favored unions by setting limits on certain union conduct. The Taft-Hartley Act amendments to the NLRA also sought to level the field by expressly guaranteeing the rights of employers to engage in non-coercive speech regarding unionization. Section 8(c) of the NLRA embodies this protection,

providing that

[t]he expressing of any views, argument, or opinion, or the

dissemination thereof, whether in written, printed, graphic

or visual form, shall not constitute an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.2

Quite simply, section 8(c) gets it right.

This term, the Supreme Court found that the NLRA?s protection of free debate in the context of union organization, articulated in part by section 8(c), preempts state regulation that purports to prohibit the expenditure of state funds by certain employers on speech ??to assist, promote, or deter union organizing.??3 The Court struck down California?s Assembly Bill (AB) 1889, which restricted the speech of recipients of state funds, because the NLRA preempts state regulation that interferes with Congress?s intention that certain activities be left unregulated and instead controlled by the free play of economic forces. The decision reinforces the NLRA?s preemptive power over state regulation of employer speech and highlights Congress?s aim in protecting free debate on the issue of unionization.

For more info, please read full article (taken from the Cato Supreme Court Review 2007-2008).

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