John Irving, former general counsel of the National Labor Relations Board, published a thoughtful opinion piece last week entitled "Don’t Employer’s Deserve Free Speech?" . The article addresses an important, but less well publicized, aspect of the proposed Employee Free Choice Act. That is, stiff penalties and liquidated damages for employers found guilty of unfair labor practices.
Mr. Irving is concerned about the fine and often vague line between an employer’s expression of an opinion or argument opposing a union, which is permitted under the law, and the threat of reprisal or promise of benefit, which is not protected. Whether or not a particular statement, for example–"unions cause people to lose jobs"– is a protected statement of opinion or an unlawful threat, may depend upon who is sitting on the National Labor Relations Board at the time the case is decided. The problem with the proposed EFCA, according to Irving, is that the penalties for being wrong have dramatically increased. Section 4 of the proposed law, entitled "Strengthening Enforcement", permits fines up to $20,000 for each violation, permits the recovery of liquidated damages, and makes it easier for the General Counsel to obtain an injunction ordering an employer to cease and desist making certain statements. Small employers in particular may be silent rather than run the risk of punitive fines.