The National Labor Relations Act contains protection of employee solicitation, handbilling, and choice of representatives that the first and fourteenth amendments do not vouchsafe to other members of society. This essay is written to review the development of this thesis and to argue that the United States Supreme Court has fashioned a regime of forum jurisdiction surrounding employees' rights to speak and print that is both unique and exquisitely complex. Two patterns of allocating jurisdiction, both subsumed under the fuzzy expression "federal pre-emption," engender the complexity. This article will first review the Court's precedents before the Taft-Hartley Act in 1947, then discuss what followed in the 1950's, then, penultimately, review the Court's holding in Linn v. United Plant Guard Workers Local 114, the campaign defamation case of 1966, and, finally, discuss the employer's property line.
One approach can be understood as elaborated from Gibbons v. Ogden in Cooley v. Board of Wardens. It consists of recognizing the jurisdiction of state tribunals to try whether a state regulation of commerce conflicts with federal law and postulates that the states possess some concurrent jurisdiction to regulate commerce among the states, when local conformity yields a polity superior to national uniformity. Before the National Labor Relations Act was amended in 1947 to add unfair labor practice prohibitions addressed to labor organizations, the Court in Allen-Bradley Local 1111 v. Wisconsin Employment Relations Board, without even questioning the jurisdiction of a state agency, affirmed the judgment of the state supreme court which upheld the agency's order against mass picketing.
Rutledge, Ivan C.
"Manipulating Forum Jurisdiction and Generating a Law of Employee Free Speech,"
Mercer Law Review: Vol. 32:
2, Article 2.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol32/iss2/2