Working Paper No. 08-59:
Liberty, Liberalism and Neutrality: Labor Preemption and First Amendment Values
Date Posted: October 2008
Abstract (below) | Full text (most recent) on SSRN
In Chamber of Commerce et al v. Edmund G. Brown, the Supreme Court offers one theory of judicial invalidation that protects employers’ freedom of speech claims and reinvigorates federal preemption doctrine within the meaning of the National Labor Relations Act (NLRA). Prescinding from an architectonic conception of freedom of speech that is supported forcefully and explicitly by the First Amendment, the Court relies on preemption doctrine to invalidate two provisions of a California statute because the enactment constitutes regulation, which intrudes into a zone that is protected and reserved for market freedom. The Court properly upholds its previous stance permitting employers to speak directly to their employees about unionization, but supporters of this decision might do well to withhold their applause. This is so because the Supreme Court, consistent with precedent, has been reluctant to substantiate such rights energetically. The Chamber of Commerce Court breathes life into this pattern.
In addition to examining labor law preemption principles, I inspect the often-contestable conception of neutrality in light of the existence of scholarship advocating an expansion in state labor law innovation aimed at reducing employer rights. The penultimate purpose of such innovation seems clear enough: to increase the level of unionization in the United States and to restore collective action to its previously ascendant status. It is doubtful that this objective can be seen as a “neutral” one. Instead, this goal is delineated by the declining importance of labor unions in the United States and the mounting appeal of paternalistic intrusions into the market. In light of this goal, employers, when confronted with either legislative or judicial assertions of neutrality, should be forgiven for suffering from a prevenient sense of doom. This impression is often made tangible via partisan enactments and adjudication.
With the advent of postmodern discourse and the possibility that courts have become captive to progressive rhetoric that is not found within the Constitution, I argue that the Supreme Court should reconsider its reliance on the NLRA and preemption doctrine as the primary vehicle to vindicate employers’ rights and should instead return to the Constitution itself as a basis for its defense of what has become increasingly difficult to defend: the free speech rights of employers and employees within a labor-management context. This approach is exemplified by recapturing the Supreme Court’s understanding of Virginia Electric as an independent ground for relief. This case, decided before the Wagner Act was amended adding explicit protection of employers’ speech, stands for the proposition that employer and labor union “attempts to persuade to action with respect to joining or not joining unions are within the First Amendment’s guaranty.”
Ultimately however, I argue that even a return to First Amendment principles will not be enough to protect employers’ freedom of expression rights. Indeed, it is unlikely that a liberal democratic state can sustain its ostensibly neutral stance on anything, including union organizing unless it recaptures what is arguably missing in American society: a shared understanding of essentials, such as truth. It is not possible to live in a democratic society that papers over deeply antagonistic world-views, except temporarily. This quandary implies that endless elucidation may be the looming destination of all debates including the employer free speech wrangle.