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UC Law Constitutional Quarterly

Mark J. Mahoney

Abstract

In this article it is argued that the National Labor Relations Board's longstanding application of Section 8(a)(2) of the 1935 Wagner Act, as amended, violates the First Amendment. It is argued that the principal constitutional defect with the Board's application of this section, which prohibits employers from "dominat[ing] or interfer[ing] with the formation or administration of any labor organization or contribut[ing] financial or other support to it," is that it largely eliminates the most effective means by which employers and nonunion employees can communicate regarding terms and conditions of employment: group discussion.

It is argued that the restrictions that the Board imposes on the freedom of employers to initiate, administer and support employee involvement programs that address terms and conditions of employment constitute restrictions on protected speech and that the justifications offered for these restrictions are inadequate even if one supposes that these restrictions are subject to the intermediate level of scrutiny that the Supreme Court applies to restrictions on commercial speech. It is argued, however, that Section 8(a)(2) can be saved from First Amendment infirmity if the Board requires proof that an employer's conduct has coerced employees before finding it to be unlawful under Section 8(a)(2) and that Section 8(c) of the Wagner Act, as amended, provides the Board with a statutory mandate for demanding such proof. It is noted in closing that the resulting application of Section 8(a)(2) under this proposed construction of the Act not only has the merit of being a constitutionally permissible one, but also better serves the interest of enhancing employees' voice at the nonunion workplace, while protecting employees' free choice regarding trade unionism.

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