In the aftermath of a typical strike, management often seeks to restore order to the workplace by imposing restrictions on employee expression. Although in principle employee expression is protected by section 7 of the National Labor Relations Act, courts, relying on outdated notions of workplace organization, often accept ad hoc management justifications for restrictions on employee expression. The author argues that after a strike, it is crucial for employees to be able to express their grievances or vent their frustrations at exactly the same time that employers feel it necessary to restrict expression as a way of re-imposing order in the workplace. She proposes that courts require a heightened showing of threats to workplace discipline before accepting the kinds of justifications traditionally accepted by courts in permitting employers to limit the rights of their employees. Courts can do this, she maintains, by recognizing and incorporating competing theories of workplace organization. Acceptance of competing organizational paradigms would increase their sensitivity to the nuances of employee rights under section 7 and eventually result in increased protection of employee rights consonant with section 7's guarantees.
Lidsky, Lyrissa Barnett, Maintaining Order in the Post-Strike Workplace: Employee Expression and the Scope of Section 7, 15 Berkeley J. Emp. & Lab. L. 87 (1994).