
Andrew Strom is a union lawyer based in New York City. He is also an adjunct professor at Brooklyn Law School.
Andrew Strom is Associate General Counsel of SEIU Local 32BJ.
In July, the Seventh Circuit issued a decision in a long-running dispute between the Congress Plaza Hotel and Unite-Here Local 1. The court allowed a case to go to trial alleging that the Union engaged in unlawful coercive secondary activity. Some of the activity at issue involved small groups of union representatives attempting to meet with decision-makers of various entities in an effort to persuade them not to do business with the Hotel. The court held that once the decision-makers said they were not interested in talking to the Union, the Union did not have a right to go back on another day to try again. In reaching this conclusion, the court embraced a position long advocated by union supporters, holding that individuals are essentially a captive audience at their workplaces.
The court asserted that “First Amendment liberties are less fundamental when the speaker is cornering an unwilling audience in a private office space.” The court further noted that while a viewer can ordinarily avert his eyes from unwanted messages on a public street, “the freedom of an unwilling listener to avert one’s eyes or ears is considerably lessened when she is required to be on the job… First Amendment freedoms would therefore not be significantly chilled by a ruling that the Union harassed an essentially captive audience.”
Perhaps the labor movement should thank the Congress Plaza Hotel for getting a court to acknowledge what many of us have been saying for years –- on-the-job captive audience meetings do not deserve the protection of the First Amendment. In a partial dissent in 2 Sisters Food Group, 357 NLRB No. 168 (2011), Board Member Becker traced the history of the NLRB’s doctrine allowing captive audience meetings except for the final twenty-four hours before an election. He concluded that “one searches Board precedent in vain for a colorable rationale for the current rule….” To the contrary, he pointed out that the source of the Board’s doctrine allowing employers to compel attendance at anti-union meetings is a 1948 case, Babcock & Wilcox Co., where the Board simply asserted that the result was required by Section 8(c) of the NLRA. But, it has often been said that Section 8(c) “merely implements the First Amendment.” If the Seventh Circuit is correct that the First Amendment does not protect a speaker who confronts an unwilling listener on the job, then the NLRB ought to be able to provide workers with a mechanism where they can opt out of listening to their employer’s anti-union speech.
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April 3
Chicago Teachers Union reaches tentative agreement; SEIU rallies for first amendment protection; Representatives introduce Protect America's Workforce Act.
April 2
Local academic unions face pushback in negotiations
April 1
In today’s news and commentary, Aramark workers at Philly stadiums reach tentative agreement, Crystal Carey is poised to take general counsel at NLRB, President Trump’s nominees for key DOL positions, and the National Treasury Employees Union sues the Trump administration. UNITE HERE Local 274, which represents thousands of food service workers in the Philadelphia region, […]
March 31
Trump signs executive order; Appeals court rules on NLRB firing; Farmworker activist detained by ICE.
March 28
In today’s news and commentary, Wyoming bans non-compete agreements, rideshare drivers demonstrate to recoup stolen wages, and Hollywood trade group names a new president. Starting July 1, employers will no longer be able to force Wyoming employees to sign non-compete agreements. A bill banning the practice passed the Wyoming legislature this past session, with legislators […]
March 27
Florida legislature proposes deregulation of child labor laws, Trump administration cuts international programs that target child labor and human trafficking, and California Federal judge reversed course and ruled that unions representing federal employees can sue the Trump administration over mass firings.