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Do Workers Have Free Speech Rights?

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Here’s an interesting case with potential major implications:

A janitors’ union in San Francisco has taken on a court battle with major implications for what workers can do to protest their employers’ practices, and the fight starts immediately in the wake of a government finding that more individual Americans went on strike in 2018 than any year since 1986.

The Service Employees International Union filed a federal court appeal to challenge a labor board ruling that a group of subcontracted janitors were justifiably fired for picketing at the building where they worked. The workers were objecting to low pay and alleged sexual harassment by a supervisor, according to the union.

The National Labor Relations Board held that the workers weren’t covered by federal labor laws because they were trying to convince a ‘secondary employer’—the property management company—to cut ties with their own. SEIU has appealed, and is also arguing that the workers were protected by the First Amendment’s free speech rights.

The SEIU’s case pits workers’ rights under the National Labor Relations Act and the First Amendment squarely against those of employers, and could have important practical implications for labor-employment relations across the country.

I’ll say. One thing that Janus v. AFSCME made clear is that the Court is more than happy to create different speech categories for unions and corporations, restricting the former and opening up the latter. But doing so blatantly also undermines the legitimacy of the Court. And this really is about whether workers have free speech rights at all:

The workers, who were directly employed by Ortiz Janitorial Services, picketed in front of the building where they worked. Their signage called out a building tenant to act. Their backers at SEIU and the San Francisco Living Wage Coalition also pressured the building’s management firm to do something to improve their working conditions under OJS.

The NLRB in August 2018 said the groups’ conduct violates a law that permits what’s known as “secondary picketing,” but prohibits “coercive conduct” to force a secondary employer to cut ties with the primary employer.

SEIU took the dispute to the U.S. Court of Appeals for the Ninth Circuit after a three-member Republican majority on the labor board declined to reconsider the issue. The case involves important questions about free speech in the workplace context: where, and why, the boundaries should be drawn.

“By construing the NLRA to prohibit non-coercive picketing, leafleting, and speech simply because the workers asked the managers and tenants of the building where they worked to help them improve the unjust working conditions in that building, the Board engaged in content-based discrimination in a manner that cannot survive modern First Amendment scrutiny,” the SEIU told Bloomberg Law in an email ahead of their appeal.

While I’m not confident about the case, it’s important to be litigating these points and lay the groundwork for the eventuality that, someday, the power structure in this nation will have adjusted back to the point where workers can win in courts.

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