Document Type

Article

Publication Title

University of Pennsylvania Law Review

Abstract

Section 7 has been interpreted to protect only empioyee speech relating to terms and conditions of employment, while the First Amendment now protects public employees only when they speak on "matters of public concern." To a great extent, then, the kinds of protests that in the private sector are covered by section 7-those concerning the terms and conditions of employment-are unprotected by the First Amendment in the public sector. Conversely, the protests covered by the First Amendment-those on "matters of public concern"-lie beyond the scope of section 7 in the private sector. This largely unexplored aspect of section 7 doctrine is the subject of Part I of this Article. In Part I, I launch my critique of the subject-matter limits of section 7 of the NLRA. Section 7 is meant to protect employees who act together to advance the interests they share with their co-workers. The notion that employees' shared interests extend only to their wages and working conditions is compelled neither by the language nor by the intent of section 7, and should be rejected. It is based on a partial and increasingly outdated vision of the meaning of work in this society. Abundant evidence demonstrates the existence of profound employee concern over such matters as the safety and quality of the product or service they provide. Such concerns emerge from and affect the work experience and well-being of employees just as do concerns about wages and material working conditions. Employee interests in safety and quality are shared, of course, by consumers and the public, but this should only strengthen their claim to protection under section 7, for private employee speech on matters of concern to the public, much like public employee speech on such matters, provides valuable information that enriches public discourse. This public interest underscores the need to recognize a broader range of employee concerns under the Act. In Part III, I advance an alternative interpretation of "mutual aid or protection" under section 7 and explore its probable ramifications. I make this proposal less with an eye to its adoption than to sharpen the focus of my criticism of the prevailing conception of employee interests under section 7. I argue that where employees manifest their shared concern over a given issue by engaging in "concerted activity," this fact is a truer guide to the interests of employees than is an arbitrary delimitation like the one imposed by current section 7 doctrine. From this perspective it is clear that employees have a legitimate interest not only in the terms and conditions of their employment, but in the effect their employer's product or conduct has on customers, consumers, patients, clients, and the public at large. The scope of employee "mutual aid or protection" under section 7 thus should be expanded to accommodate the real range of employee concerns. This proposal might seem to portend a dramatic escalation in the workplace protest that employers must tolerate. But its probable consequences turn out, on closer examination, to be more modest, for they are limited by various restrictions on employee rights under section 7, both in the law and in the realities of the workplace. The more serious obstacles to my proposal lie deeply embedded in the employment relationship; it is to these difficulties that I turn in Part IV. The narrow reading of section 7 under current law reflects not just a crimped view of the interests of employees and the public, but also an expansive solicitude for the competing interests of employers-in particular, the employer's interest in the loyalty of its employees, and, more broadly, in managerial prerogatives that are thought to be threatened by employee meddling in matters apart from the immediate employment relationship. Solicitude for these employer "rights" is all-too-well established at present, but I argue that they have a tenuous standing under the NLRA in light of the plain intention of Congress to limit those rights dramatically with the passage of the Wagner Act in 1935. Ultimately, they do not provide particularly compelling grounds for preferring one interpretation of section 7 to another, and should give way to the interests of employees in speaking out on matters of concern to them at the workplace, and to the public interest in broader disclosure of information about the operations of important economic actors.

First Page

921

DOI

https://doi.org/10.2307/3312330

Volume

140

Publication Date

1992

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