Both the U.S. Constitution and the National Labor Relations Act protect the rights of workers and unions to speak out concerning their wages and working conditions in pursuit of organizing or collective bargaining. The right of free speech is particularly important during organizing campaigns when statements critical of the employer and its labor policies are an inevitable part of the union campaign.

But despite the formally stated pro-collective-bargaining policy of national law, employers, backed by teams of lawyers and labor consultants, have consistently, and in the main, successfully, resisted organizing efforts. Among the weapons used against workers and unions are defamation law suits based on criticisms of the employer made during the organizing campaign.

A recent Texas case, Professional Janitorial Service of Houston Inc. v. Service Employees International Union Local 5, illustrates the damage to national labor policy often created by punitive law suits and unsophisticated state court judges. In that case a Texas state judge, based on a jury finding, ordered the union, which represented low wage janitorial workers in the Houston area, to pay $5.3 million to Professional Janitorial Services because ofstatements that "disparaged the company."

The judge played a key role in encouraging the jury’s verdict. For example, she presented to the jury not the actual union flyers and statements at issue in the case but, instead, abbreviated and inaccurate summaries of those materials written by the judge herself. The trial court also allowed the company’s lawyers (over union objection) to rest the bulk of their case on an outdated union "campaign manual" that was not in effect during the Houston campaign and that no one involved in the Houston campaign had ever seen.

The actual statements made by the union were in fact typical union organizing claims. Many merely articulated the legal rights of workers. Notably the trial judge failed to analyze the contested speech in terms of the language or policy of either the NLRA or the Constitution. She did not show awareness of theU.S. Supreme Court’s 1940 decision in Thornhill v. Alabama in which it stated that "the dissemination of information concerning the facts of a labor dispute [is] within that area of free discussion that is guaranteed by the Constitution." The Thornhill opinion has been regularly cited and its significance broadened since it was first issued.

Nor did the judge refer to Section 7 of the NLRA, which has been regularly held to protect a wide variety of speech in the organizing context. As the National Labor Relations Board and federal courts have recognized, it is not necessary that speech be courteous, accurate, or reasonable for it to be protected. It is also true that because of the doctrine of federal preemption, the great majority of speech or conduct protected or even arguably protected by the NLRA is not subject to the jurisdiction of state courts. "To allow the states to control conduct which is the subject of national regulation would create potential frustration of national purposes," wrote Justice Felix Frankfurter in the landmark 1959 Garmon decision.

In 1966, the U.S. Supreme Court created a narrow exception to the doctrine of federal preemption in the case of Linn v. United Plant Guard Workers of America. By a five to four vote the Court held that in limited circumstances an employer could bring a suit for libel or defamation against a union for false and malicious defamatory statements made during an organizing drive.

Justice Tom C. Clark, who wrote the majority opinion, acknowledged that it is

the policy "of the National Labor Relations Act … to encourage free debate on issues dividing labor and management." He noted with evident approval that "epithets such as ‘scab,’ ‘unfair,’ and ‘liar’ are commonplace in these struggles and not so indefensible as to remove them from the protection of s 7, even though the statements are erroneous and defame one of the parties to the dispute." He also acknowledged that in the case of conduct covered by Section 7 of the NLRA "relinquishment of state jurisdiction … is essential ‘if the danger of state interference with national policy is to be averted.’"

It is clear that the trial court’s actions in the PJS case did not meet the narrow requirements of the Linn case. Indeed, it is difficult to imagine a verdict that more blatantly overrides basic employee rights and traditional Constitutional policies. Fortunately, the union has begun the appeal process that will permit it to challenge the judge’s mistaken rulings. One hopes that an appellate court will stand up for free speech and the long recognized and well-established rights of workers.