Union-Backed Business Meeting Restrictions Called Unconstitutional in Illinois

The labor movement in the United States has a long history of working toward protecting workers from exploitation and coercive situations. In fact, labor unions can trace their histories almost as far back as the official founding of the country, according to many historians. It is not surprising, in the least, given that the United States was founded on principles such as casting off oppressive control and that no one had the right to rule over the public without their consent. It can be said that America started as a social movement surrounding matters of control and public representation, much like the basis for the history of labor unions.  

The Illinois Department of Labor Security lists dozens of currently operating labor unions, including the Teamsters Council of Joliet and Teamsters Local of Alton and that of Belleville, among many others. The Teamsters Union is now encouraging Governor J.B. Pritzker to sign into law Senate Bill 3649, which would create the Worker Freedom of Speech Act. This Act aims to protect employees from workplace retaliation if they do not comply with requirements to attend what is known as "captive audience presentations" by their employers. This is due to the fact that many employers schedule mandatory meetings for their employees where they present them with speeches and seminars, which are intended to discourage worker organization and bargaining attempts and instill a sense of fear surrounding such efforts.   

It is against Illinois law and public policy to overtly engage in union busting. The Collective Bargaining Freedom Act states that "it is the policy of the State of Illinois that employers, employees, and their labor organizations are free to negotiate collectively." In a statement by Teamsters Joint Council 25 President Thomas W. Stiede, he explained that "employers routinely use corporate indoctrination to foster an environment conducive to coercion whenever they find out about a union organizing drive," and that the newly introduced Worker Freedom of Speech Act would "safeguards workers' rights to opt out of these meetings without fear of repercussions." 

Specific Language 

There are three prongs to the Worker Freedom of Speech Act. It specifies that an employer "may not discharge, discipline, or otherwise penalize, threaten to discharge, discipline, or otherwise penalize, or take any adverse employment action against an employee" for either of the three. The instances when an employer may not retaliate against an employee include: 

• If an employee declines to attend or participate in an employer-sponsored meeting or declines to receive or listen to communications from the employer if the meeting or communication is to communicate the opinion of the employer about religious or political matters; 
• as a means of inducing an employee to attend or participate in meetings and receive or listen to communications or 
• because the employee, or a person acting on behalf of the employee, makes a good faith report, orally or in writing, of a violation or a suspected violation of the Act. 

The Act further provides that aggrieved employees have a "right of action" to "bring a civil action to enforce any provision of this Act no later than one year after the date of the alleged violation." It broadens the protections to include fellow employees so that they can bring an action "on behalf of themselves and other similarly situated employees." This extends to not just employers but also to their agents, representatives, and designees. The Act also imposes civil penalties on employers who violate its principles. 

Specific Types of Organizations 

A second amendment to the Act introduced on the Senate floor also includes specific types of communication that the Act extends to. The Act prohibits employers from requiring their staff or employees to attend an employer-sponsored meeting or participate in any communication: 

• about the employer's political views and ideals; 
• about the employer's proposals to change legislation, regulations, or public policy; and 
• about the employer's religious beliefs and practices. 

This applies unless these types of meetings or communications are voluntary. 

Exceptions 

There are exceptions to this, however. If the purpose of the employer is that of being: 

• a political organization, a political party organization, a caucus organization, a candidate's political organization, or a specified not-for-profit organization;  
• the General Assembly or a State or local legislative or regulatory body; or 
• a religious organization 

and these employers expressly engage in advocacy around these identifying purposes; then it is permitted for them to host meetings and distribute communications to their employees for such advocacy purposes. 

Illinois State Senator Robert Peters, a Democrat from Chicago, has explained this to mean that "if an organization's focus has a religious intent and people are hired into that with that being known, that is separate than a Hobby Lobby forcing people to have to be within religious meetings". So, if someone works for a church, for instance, it is permissible for that church to have required meetings that are conducted for the purpose of helping their employees understand the teachings of that church. 

Opposition Claims of Unconstitutionality  

Unsurprisingly, the issue has divided state representatives along party lines. The bill is sponsored by Senator Peters, who has stated that it doesn't matter when or where the meetings are held, whether on-site at the place of business in question or during an off-site event after hours. On the other hand, Republicans such as State Senator Jil Tracey of Quincy have called it an over-reach. Senator Tracey stated that this would "thwart an employer's business, his schedule and it goes far beyond what should be allowed in interfering with the workplace".  

Republican State Senator Jason Plummer of Edwardsville has stated that the Act is against the state's public policy and is unconstitutional. A similar piece of legislation in Minnesota is being challenged on constitutional grounds also, with opponents claiming it "violates the First and Fourteenth Amendments to the United States Constitution by discriminating against employers' viewpoints on political matters, by regulating the content of employers' communications with their employees, and by chilling and prohibiting employer speech."  

The First Amendment to the Constitution provides that Congress "make no law respecting an establishment of religion or prohibiting its free exercise" and also protects freedom of speech. SB 3649 does not prohibit the free exercise of speech per se, but it does limit its imposition on employees by their employers. It likewise does not prohibit free speech as much as it curtails an employer's ability to force their speech onto their employees. There is an argument to be made both ways, but as written, the bill does provide for exceptions based on the advocacy purpose of places of business and various employers, so these exceptions may be construed as taking care of the constitutionality issue as it pertains to the First Amendment. 

The Fourteenth Amendment provides, in pertinent part, that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor deny to any person within its jurisdiction the equal protection of the laws. A challenge to SB 3649 based on the Fourteenth Amendment would be more difficult to mount due to the fact that the wording of the bill does not discriminate amongst employees or employers based on anything in particular, nor deny anyone any privileges or immunities. It can be argued that the bill would deny employers the privilege contained in the First Amendment guarantee of freedom of speech. However, this would only work if the First Amendment claim were to succeed.  

Ultimate Purpose 

As mentioned above, the main purpose of this bill is to protect employees from the insidious nature of union-busting, which can be done in ways much less obvious than an employer simply prohibiting its employees from organizing.  By limiting the types of communications that employers may try to mandate, this proposed legislation would create safeguards against anti-labor indoctrination for every employee across the state.

Source

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