Employers’ Urging Employees to Vote a Particular Way, and Warning of Dangers if a Particular Candidate Is Elected

As I mentioned below, employers generally may not fire or threaten to fire employees based on their votes. But may they try to persuade their employees to vote a particular way? And, in particular, may they argue that, if a particular candidate is elected, things will go badly for the business and therefore for its employees?

1. The Supreme Court has long recognized employers’ right to speak to its employees. See, e.g., Thomas v. Collins (1945) and NLRB v. Virginia Electric Power Co. (1941). By 1941, all but two of the Justices were Roosevelt appointees (the others were Chief Justice Harlan Fiske Stone and Justice Owen Roberts, both generally seen as moderates), and one of the two Republican appointees, Roberts, didn’t participate in Virginia Electric; these were not decisions of a politically conservative Court. And the first of the cases came just 10 years after the first Supreme Court decisions striking down a government action on free speech grounds, so this principle was no late addition to First Amendment law. There has thus been little controversy about the proposition that employers generally have a right to speak to employees.

2. The issue has usually arisen within the context of employer speech about unionization, and not about elections. But the one case that I know has considered the issue, Kentucky Registry of Election Finance v. Blevins (Ky. 2001), applied this to candidate election campaigns, striking down a statutory provision that barred any employer from circulating statements requesting employees to vote a particular way.

To be sure, before Citizens United all corporations (except some ideological nonprofit corporations), whether or not speaking to their employees, could have been restricted from using corporate funds to support or oppose a candidate. Still, even then, corporations had a right to support or oppose ballot measures. Noncorporate employers, such as sole proprietorships or partnerships, were free to express their views. Also, corporations had a constitutional right to use “segregated funds” provided by officers and managers to support or oppose candidates, and individual corporate officials had a constitutional right to use their own funds to do so, though I suspect that a properly crafted law could require them to pay money to the corporation for use of its e-mail facilities and other property. And in any event, following Citizens United, all employers, whether corporate or not, have First Amendment rights to speak about candidates just as they can speak about ballot measures, unionization campaigns, and other matters.

3. But what about the possibility that employees might perceive employer speech not just as advocacy, but as a threat of collective retaliation against the entire workforce if some candidate is elected or some measure is passed? Some federal and state laws that ban threats of individual retaliation against voters might prohibit threats of collective retaliation as well, and some states have specific though narrow laws barring some such threats of collective retaliation (see pp. 335-36 item F).

The question is what constitutes a forbidden (and constitutionally unprotected) threat and what constitutes a constitutionally protected prediction of economic trouble. There is a good deal of caselaw on this question from the union election context, and I suspect it would equally apply to the political context.

NLRB v. Gissel Packing Co. (1969) is the Court’s latest statement on this, and here’s a key passage (paragraph break added):

Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a “threat of reprisal or force or promise of benefit.” He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s 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.

If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment. We therefore agree with the court below that “[c]onveyance of the employer’s belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of closing is capable of proof.” As stated elsewhere, an employer is free only to tell “what he reasonably believes will be the likely economic consequences of unionization that are outside his control,” and not “threats of economic reprisal to be taken solely on his own volition.”

Since Gissel, federal courts have indeed tried to apply these distinctions, and have sometimes held employer speech to be protected and sometimes not, depending on exactly what was said. Here’s a sample passage from General Electric Corp. v. NLRB (D.C. Cir. 1997):

Shortly before the [union representation] election, Robert Smith held several more meetings with the plant’s production and maintenance employees, at which he read a prepared speech stating in part:

[O]ur business (like many others) has been rocked by a world-wide recession that has made winning even tougher. When we started taking these [revitalization] actions last year, I said that change would not be easy and not everything we did would be perfect, but together we would work to fix our mistakes. I believe we can still do that and do it without the UE. A union that doesn’t, in my opinion, understand our business or what we believe in here.

The choice we make this (next) week will have a profound impact on our future. The people who buy our products, our sales force that sells our products and the company that supplies the investment dollars for our growth are all watching what happens here. We need to send them a signal, a clear signal that tells them they can count on us to be a dependable supplier, committed to continuous improvement without the threat of possible strikes. The best way to send this signal is to vote “NO” on Thursday and Friday.

In every difficult situation there are lessons to be learned. This long campaign has taught us all the need for more open, straightforward communications and the necessity to be responsive. We must learn to work together and get everyone involved in the business. I’m afraid if we can’t do that — we won’t have a business here ten years from now….

The Union promises the comfort of the past and a return to a world that no longer exists in the plastics industry. If you choose the UE, we could be heading in the wrong direction.

I believe there is tremendous potential in this organization and there is nothing we cannot do together. But if the UE divides our forces, I honestly do not know what could happen to this site.

Finding this speech to have sent a message that choosing the Union “would result in disharmony among the Washington plant employees and cause GE to shut [the plant] down,” the ALJ ruled that the speech violated the Act. According to the ALJ, Smith “warned the listening employees that they ‘must learn to work together and get everyone involved in the business’ or ‘we won’t have a business here ten years from now.’” The ALJ further concluded that Smith’s “warning“ that GE would withhold further investment in the plant if employees voted in the Union “raise[d] the spectre of a loss of jobs.”

… [W]e cannot square the ALJ’s conclusions with the record. Smith did not “warn” employees that General Electric would retaliate if the Union won the election. He instead conveyed to employees the risks of voting in the Union, risks that were, as in Gissel, beyond the employer’s control. According to Smith, those risks included the possibility of strikes interrupting shipments to customers, as well as of GE — operating in an increasingly competitive environment — reducing its investment in the plant…. As we said in [an earlier precedent,] Crown Cork, ”[i]f the Board may take management statements that very emphatically assert a risk, twist them into claims of absolute certainty, and then condemn them on the grounds that as certainties they are unsupported, the [employer’s section 8(c)] free speech right is pure illusion.”

Not only do General Electric’s statements resemble Crown’s, but they differ from the statements at issue in [another precedent,] Allegheny Ludlum, where the employer made no attempt to ground its warnings of loss of job security in objective circumstances, such as the competitive environment and need to contain costs. Allegheny Ludlum “in effect told salaried employees that unionization would lead to layoffs and a loss of job securitybecause once the salaried employees chose union representation the Company would no longer ‘find ways’ to avoid laying them off in hard times.” The “because” in Allegheny Ludlum — that the company would not work as hard to keep Union members on the payroll — was entirely within the company’s control. Here, as in Crown Cork, the “because” was a set of objective factors beyond the employer’s control: unionization increased the risk of strikes, which would in turn increase costs, lower production, and lead customers to buy, and the parent company to invest, elsewhere. Crown Cork thus controls this aspect of the case.

4. All this means, I think, that employers remain largely free to argue to their employees how the employees should vote, and to warn of dire economic consequences for the employer — and therefore to the employees — if an election (whether union, local, state, or federal) comes out a particular way. The mere possibility that some employees will take any message from their employer as coercive does not strip the employer of its constitutional rights.

If the employer threatens reprisals “to be taken solely on [its] own volition,” for instance because of management pique, that speech would indeed be treated as a constitutionally unprotected, and could lead to civil liability or even criminal punishment (if the relevant jurisdiction’s law does prohibit such speech). But if the employer is making an argument based on projected economic consequences “beyond the employer’s control,” such as forecast greater regulation, higher taxes, and so on, then that speech is constitutionally protected.

Note also that, as a practical matter, the outcome of a Presidential election is unlikely to lead to retaliation by an employer “taken solely on [its] own volition.” Some employers might be so upset with their employees’ voting for a union at some particular plant that they might take out their annoyance on all employees at that plant (or perhaps just all union members), and might instead shift work to another plant. But it is the rare employer, I think, that would in a fit of pique close or cut back its business just because management is upset at how the nation at large has voted in a Presidential election. (That’s especially so if this is the sort of employer that would find it hard to move the work to another country.)

If the employer does eventually cut back on work as a result of an election, that seems likely to be as a result of the genuine economic consequences of the election, or at least a genuine concern about such consequences. Employees would likely recognize this, and thus perceive most such employer statements as indeed warning about economic influences beyond the employer’s control, rather than just “If X is elected, I’ll be so upset that I’ll close down this branch of my business.”

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