Free Speech Rights in Your Union

Sign up for the workshop "Democratic Rights for Union Members: Free Speech" hosted by the Association for Union Democracy on November 5.

Did you know there’s a “Bill of Rights for Union Members” that protects the right to free speech in the union? It’s part of a law called the Labor-Management Reporting and Disclosure Act (LMRDA), which applies to any union that has members in the private sector or at the post office.

Under the law, union members have the right to:

• Criticize their union
• Criticize officers, staff, and candidates
• Demand changes in union policies
• Oppose ratification of a contract
• Organize caucuses or other groups of members

If you think your union might be violating your democratic rights, use a test created by the Supreme Court in United Steelworkers v. Sadlowski, to think through your situation.

BASICS OF THE TEST

Step 1: Has a member’s speech been impaired?

Is the topic of speech about a union issue? Some courts say that to be protected by the LMRDA, speech must be about a topic that matters to the union as a union.

Courts also look at whether the union has done something serious enough to impact speech, like disciplining a member or excluding them from a meeting.

Step 2: Can the union point to a rule?

The next step is to ask whether the union can point to a rule limiting your speech.

Whether there’s a pre-existing rule is an important question for two reasons. First, the LMRDA protects the right of unions “to adopt and enforce reasonable rules” to protect the union. It does not mention any right of unions to limit speech on an ad hoc basis.

Second, requiring an existing rule protects free speech because it limits the ability of officials to arbitrarily pick and choose which speech they want to limit.

If union officials are threatening to discipline your speech, push them to name what rule they are relying on, and write down how they answer. If they can’t name a rule, their position is much weaker.

The LMRDA says that if a rule violates free speech, then the rule is void. So if you think your union has an illegal rule, you may consider fighting it even if no one has been disciplined.

Step 3: Ask what union purpose the rule serves.

The rule has to protect the union as an organization. For example, a rule that prevents criticism of officers is for the benefit of the officers, not the union.

The rule’s purpose cannot violate the LMRDA. For example, a union could not prohibit “criticizing the local.” The whole point of the LMRDA’s Bill of Rights is to allow members to debate whether their union is doing a good job and what it could do better.

On the other hand, courts have ruled that unions have the right to prevent workers from campaigning to decertify the union in a workplace or to disaffiliate a local union from its international. Members can be disciplined or expelled for participating in such campaigns.

In other words, unions can require you to be loyal to the union, but they can’t require you to be loyal to its leaders. Advocating for a change in leadership or policy isn’t disloyalty—it’s loyal dissent.

Step 4: Is the rule “reasonable”?

When union members challenge a rule or discipline, courts look at how much the rule protects the union versus how much it limits speech. It can also be useful to ask whether a different rule would protect the union just as well with less impairment to speech. It’s hard to state an exact test for how much impairment is “reasonable,” but some examples might help you get a general idea.

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In one case, a union had a rule against using its name or logo without prior permission. The union said it needed to make sure that members did not use its name and logo to endorse products or causes the union did not support.

Although the court held that was a legitimate union purpose, it also held the rule was too broad. The rule didn’t just require permission to use the union’s name and logo to speak on behalf of the union—it required permission for any use of the name and logo. That would include members talking about the union without claiming to speak for it. The court ordered the union to rewrite the rule.

As another example, unions cannot have rules against “slander,” because such rules allow an incumbent administration to judge debates about its own officers.

Whether a union can limit hurtful or disrespectful speech will depend on the details of the rule. A broadly worded rule, like one against “foul or obscene language,” would likely be illegal, because union debates are often very informal and heated. However, a rule that tracks anti-discrimination laws (perhaps by prohibiting racist or discriminatory epithets) would likely be legal, because it is narrower and the union has a strong interest in preventing discrimination.

A union can have a rule against advocating strikes during the term of a union contract. The union’s interest is very strong—it could be liable for the costs caused by a wildcat strike.

However, the union could not prohibit most campaigning to oppose the ratification of a new contract. On the one hand, the union might have an interest in such a rule, because a “no” vote might undermine the union’s bargaining strategy. But the members’ right to debate before the ratification vote is more important.

One final note on this balancing test: It works very differently for members who hold non-elected positions with the union, such as many staff organizers. The Supreme Court has said that union democracy is stronger when elected officers can demand that staffers must support officers’ policies.

PRETEXTS FOR RETALIATION

The LMRDA also prohibits using a false or “pretextual” reason to retaliate against members for their speech. The key is proving that the union’s real motive is your speech, not whatever excuse they’re using.

If you’re worried about retaliation, then start keeping a journal of evidence. Use whatever method is convenient: a pocket notebook, a note on your phone, a Google doc, a file folder at home. Make it easy, so you actually do it.

Good things to write down:

• Statements by union officers or staff showing they’re upset by your speech.
• Suspicious timing. For example, the president of your union files charges against you a week after you criticize them in a union meeting.
• Changing stories. For example, you point out that one reason to charge you doesn’t hold up—and the union comes up with a new reason.
• Examples of other members doing what you did and not getting disciplined. For example, a supporter of the president makes an equally egregious Facebook post and faces no discipline.
• Examples of retaliation against other members.

For each example, write down who was involved, who witnessed it, and when it happened. Keep copies of any emails, texts, or official documents.

ENFORCE YOUR RIGHTS

The official legal way to enforce the Union Members’ Bill of Rights is for a member to bring a case to federal court. But these cases are slow and nearly impossible to win without a lawyer, and court costs can be very expensive. Reach out to the Association for Union Democracy to get advice on lawyers in your area.

The National Labor Relations Board does not get involved in union free speech cases unless your employer is also involved—for example, if a union encourages an employer to fire a dissident member.

Most unions have an internal process to enforce your rights. Typically the process involves sending a written complaint to your local or international explaining how your rights were violated. There may be an informal hearing as well.

The process might not be fair, but you may need to use it anyway. Depending on your case, a court might require you to have used the internal process before you can file a lawsuit. Check the constitution and bylaws for your local, international, and any regional or industrial council your local is part of.

Last but definitely not least, organizing is a powerful way to enforce your rights. Pull in your co-workers to help defend your free speech rights. And stand up for your fellow members when they exercise theirs!

Cathy Highet is a board member of the Association for Union Democracy. She practiced labor law for 20 years, representing both unions and members. Find the Bill of Rights for Union Members on the AUD website. AUD will hold a workshop about union free speech rights on November 5.