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Why Union Comprehensive Campaigns Are Protected Speech

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Fordham Law Review Volume 79 Issue 6 Article 7 November 2011 Labor Values Are First Amendment Values: Why Union Comprehensive Campaigns Are Protected Speech Charlotte Garden Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Charlotte Garden, Labor Values Are First Amendment Values: Why Union Comprehensive Campaigns Are Protected Speech , 79 Fordham L. Rev. 2617 (2011). Available at: https://ir.lawnet.fordham.edu/flr/vol79/iss6/7 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. ARTICLES LABOR VALUES ARE FIRST AMENDMENT VALUES: WHY UNION COMPREHENSIVE CAMPAIGNS ARE PROTECTED SPEECH Charlotte Garden* Corporate targets of union “comprehensive campaigns” increasingly have responded by filing civil Racketeer Influenced and Corrupt Organizations Act (RICO) lawsuits alleging that unions’ speech and petitioning activities are extortionate. These lawsuits are the descendants of the Supreme Court’s unexplained treatment of much labor speech as less worthy of protection than other types of speech. Starting from the position that speech that promotes democratic discourse deserves top-tier First Amendment protection, I argue that labor speech—which plays a unique role in civil society—should be on an equal footing with civil rights speech. Thus, even if union advocacy qualifies as legal extortion, the First Amendment should trump civil RICO enforcement, with two limited exceptions: speech that is actually malicious, and speech that imminently threatens to force an employer to choose between breaking the law and suffering significant economic harm or shutting its doors altogether. TABLE OF CONTENTS INTRODUCTION ........................................................................................ 2618 I. BACKGROUND ..................................................................................... 2621 A. Union Comprehensive Campaigns ......................................... 2621 B. Civil RICO as a Response to Union Comprehensive Campaigns ............................................................................ 2623 1. Extortion Liability for Core Union Activity .................... 2624 2. Recent RICO Lawsuits Targeting Unions ....................... 2626 * Assistant Professor of Law, Seattle University School of Law (effective August 2011). B.A. McGill University, 2000; J.D. New York University 2003. As an associate at Bredhoff & Kaiser, PLLC, I worked on Smithfield Foods v. United Food & Commercial Workers International Union, 585 F. Supp. 2d 789 (E.D. Va. 2008), from when it was filed in October 2007 until leaving the firm in July 2008. I would like to thank Hannah Alejandro, Kate Bushman, Owen Davies, Steve Goldblatt, Mike Gottesman, Mindy Leon, Nancy Leong, Justin Pidot, Robin West, and Brian Wolfman, as well as the participants in the Fourth Annual Employment & Labor Law Scholars’ Forum and the Georgetown University Law Center Fellows’ Workshop Series, all of whom provided invaluable advice on this paper. 2617 2618 FORDHAM LAW REVIEW [Vol. 79 3. The UFCW’s Comprehensive Campaign To Organize Smithfield’s Tar Heel Plant ............................................. 2626 4. Smithfield’s Extortion Allegation .................................... 2629 II. FIRST AMENDMENT PROTECTION FOR UNION COMPREHENSIVE CAMPAIGN SPEECH UNDER CURRENT LAW ................................. 2632 A. Picketing ................................................................................. 2633 B. Boycotts................................................................................... 2638 C. Petitioning .............................................................................. 2642 D. Labor Speech as Commercial Speech? .................................. 2644 III. CIVIL SOCIETY AND THE FIRST AMENDMENT .................................. 2647 A. The Role of Civil Society in Promoting Deliberative Democracy ............................................................................ 2649 1. Associations and “Checking and Opposing” the State .... 2650 2. Associations and Interdependence ................................... 2650 3. Associations as Places and Reasons To Come Together . 2651 4. Associations as “Schools for Democracy”....................... 2652 B. Labor Unions and Civil Society .............................................. 2652 1. Unions “Checking and Opposing” the State .................... 2653 2. Unions Promoting Interdependence ................................. 2653 3. Unions as Places and Reasons To Come Together .......... 2656 4. Unions as “Schools for Democracy” ............................... 2657 IV. FIRST AMENDMENT VALUES AND THINKING SMALL: HOW CIVIL RICO POSES A GREATER FIRST AMENDMENT PROBLEM THAN NLRB REGULATION OF SPEECH .................................................. 2659 A. The NLRB’s Potential To Enhance Democracy...................... 2660 B. Civil RICO and First Amendment Balancing ......................... 2663 1. False Speech .................................................................... 2665 2. Comprehensive Campaign Speech in Pursuit of an Illegal Goal ...................................................................... 2666 CONCLUSION ........................................................................................... 2668 INTRODUCTION Union density—the percentage of the eligible workforce that is represented by a union—is falling in the United States. Among private employers, it has been falling since the 1950s and is now well below ten percent, far lower than in previous decades.1 Unless unions come up with new strategies to organize workers this is unlikely to change, particularly given employers’ impressive track records at defeating traditional organizing methods.2 In response, unions are increasingly waging 1. BUREAU OF LABOR STATISTICS, UNION MEMBERS SUMMARY (2011), available at http://www.bls.gov/news.release/union2.nr0.htm. 2. See generally Kate Bronfenbrenner, Final Report: The Effects of Plant Closing or Threat of Plant Closing on the Right of Workers To Organize, DIGITALCOMMONS@ILR INT’L PUBLICATIONS (Sept. 30, 1996), http://digitalcommons.ilr.cornell.edu/ cgi/viewcontent.cgi?article=1000&context=intl. 2011] LABOR VALUES ARE FIRST AMENDMENT VALUES 2619 “comprehensive campaigns” in pursuit of employer neutrality, recognition, first contracts, and the like. During comprehensive campaigns, unions deploy a range of tactics, including teaming up with community groups to criticize the company’s record on labor, environmental, and other issues of concern to the public and company stakeholders; lobbying city governments to pass resolutions condemning the company; opposing the company in the regulatory arena (such as by opposing permit applications); and organizing boycotts of the employer’s goods.3 Employers hate comprehensive campaigns. They can span decades, they can harm the employers’ reputations, and they can be costly to fight. (And, they sometimes result in unionization or a contract.) Increasingly, employers are responding by filing civil racketeering actions.4 These suits allege that a comprehensive campaign is extortionate in that it leverages the employer’s fear of economic loss to obtain property, in the form of either a neutrality or card-check agreement or, more tangibly, union dues or increased wages and benefits.5 Additionally, they may also allege that the comprehensive campaign’s goal was illegal.6 For example, in Smithfield v. United Food & Commercial Workers International Union (UFCW),7 the complaint alleged that the union sought to compel company recognition of the union as its employees’ exclusive representative, even though the union lacked majority support.8 However, other suits simply focus on the fact that employers have no legal obligation to agree to certain union demands, such as remaining neutral during an organizing campaign.9 It is unclear what role the First Amendment plays in protecting unions from civil liability under the Racketeer Influenced and Corrupt 3. Cynthia L. Estlund, The Ossification of American Labor Law, 102 COLUM. L. REV. 1527, 1605 & n.326 (2002). 4. There have been fewer than twenty such suits filed since 1980. James J. Brudney, Collateral Conflict: Employer Claims of RICO Extortion Against Union Comprehensive Campaigns 27 & nn.131–33 (Dec. 2009), available at http://works.bepress.com/cgi/viewcontent.cgi?article=1001&context=james_brudney. However, the filing of three such suits within the space of a year might suggest that employers are beginning to view civil RICO as a more attractive way of fighting union organizing campaigns. See generally Cintas Corp. v. UNITE HERE, 601 F. Supp. 2d 571 (S.D.N.Y.) (complaint filed March 5, 2008, alleging civil RICO violation and trademark infringement), aff’d, 355 F. App’x 508 (2d Cir. 2009); Wackenhut Corp. v. Serv. Emps. Int’l Union, 593 F. Supp. 2d 1289 (S.D. Fla. 2009) (complaint filed Nov. 1, 2007 in the Southern District of New York, then transferred to the Southern District of Florida under Case no. 9:07-cv-81090, alleging civil RICO violation); Smithfield Foods, Inc. v. United Food & Commercial Workers Int’l Union, 585 F. Supp. 2d 789 (E.D. Va. 2008) (complaint filed Oct. 17, 2007, alleging violations of civil RICO and various North Carolina torts).
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