Employers can still share facts, opinions, and examples—sometimes referred to by the acronym FOE—about unions, despite increased scrutiny about whether opinions are unlawful threats.

If employers are opposed to unionization, they should exercise their free speech rights during an organizing campaign, said attorney Phillip Wilson, president of LRI Consulting Services Inc., in Broken Arrow, Okla.

He said, “A lot of employers are concerned about exercising their protected speech rights because they don’t want to be targeted” by the National Labor Relations Board (NLRB) general counsel, who is independent from the board and prosecutes unfair labor practice cases, or the NLRB itself. “In my view, this is the wrong approach.”

Once a union is voted in, “you’re basically stuck with it,” Wilson added. “Well over 90% of workers covered by unions today never had a chance to vote on whether they wish to remain represented.”

Facts

Amy Moor Gaylord, an attorney with Akerman in Chicago, said factual statements about unions may involve:

• How much they charge their members in dues and any other fees.
• How many strikes and/or lockouts they have been involved in over the past few years.
• Whether they have been sued and for what.
• Whether any of their leadership has been indicted or sent to prison.
• Anything that can be found in a union’s LM-2 form, such as how much that union pays its officers and business agents, how much it collects in dues each year, how much it spends on business vehicles...

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