"It completely undermines employer speech," said J.L. Wilson, the vice president of government affairs for Associated Oregon Industries, a Salem-based trade group.
This gets to the crux of the major flaw in our labor election process. Specifically, employers are not a party to the election and yet have been afforded various "rights" throughout the election process. An NLRA election is a vote by, for and amongst the workers and it is a vote for self representation or union representation. That's it, nothing more and nothing less and yet we've allowed a sprawling array of employer rights in the election context to develop over the decades.
The employer has an interest in the outcome of the election so much as they'd probably rather not have their employees represented by a union but that's a peripheral interest at best. The employer doesn't appear on the ballot and management doesn't get a vote in the election. Thus logic would dictate that the employer has no freedom of speech rights at stake and certainly no right to hold captive audience meetings.
Let's flip the tables. What would the Chamber of Commerce say about the rights of employees when a company is preparing to select it's directors? What if employees asserted a right to hold a captive audience meeting with shareholders just prior to the election of the Board of Directors?
For some seriously in-depth reading on the topic go find the following law review article,
Craig Becker, Democracy in the Workplace: Union Representation Elections and Federal Labor Law, 77 Minn. L. Rev. 495 (1993)
And yes, Becker is an Obama nominee to the NLRB and this is the infamous article that has had business interests in a tizzy for months.