The DC Circuit Reminds the NLRB—Again—That Employers Have a Right to Speak About Unionization
|Topics:||First Amendment • Labor & Employment Law|
|Sponsors:||Labor & Employment Law Practice Group|
Can a statute designed to implement the First Amendment somehow protect less speech than the First Amendment does? You might think not—but then, you probably don’t work at the National Labor Relations Board. For decades, the Board has interpreted a provision of federal labor law designed to protect employer speech as, somehow, less protective than the constitutional amendment it was supposed to mirror. But that way of thinking may be coming to an end. Recent judicial decisions, including one from the DC Circuit, suggest that courts are increasingly ready to reject the Board’s approach and enforce the law according to its original purpose.
To understand the issue, you have to go back to the early 1940s, shortly after Congress passed the National Labor Relations Act. The Act assigned enforcement authority principally to the Board. One of the first things the Board did with that authority was to limit employer speech during union election campaigns. According to the Board, an employer could influence an employee’s votes by expressing a preference one way or another. And that kind of influence would interfere with the employees’ right to choose a bargaining representative. The Board therefore required employers to maintain strict neutrality during campaigns, and it routinely charged them with violating the law when they made their opinions known.
The issue quickly reached the Supreme Court, which rejected the Board’s view. In NLRB v. Virginia Power Co., the Court held that employers had, at minimum, the right to express noncoercive views on unionization. While an employer’s statements might inform the Board’s analysis of the employer’s conduct, it would be “difficult” to sustain an unfair-labor-practice charge on speech alone.
Even that approach, however, was too restrictive for Congress. In 1947, it passed the Taft-Hartley Act, a landmark labor law aimed at reining in union abuses. Among the Act’s chief new provisions was section 8(c), which explicitly forbade the Board from using any employer’s opinions or views as evidence of an unfair labor practice. In an accompanying committee report, the Act’s drafters made clear that they were responding directly to the Board’s restrictive early decisions:
The committee believes these [Board] decisions to be too restrictive and . . . provides that, if under all the circumstances, there is neither an express or implied threat of reprisal, force, or other offer of benefit, the Board shall not predicate any finding of unfair labor practice upon the statement.
Since then, the Supreme Court has repeatedly held that section 8(c) imports First Amendment principles into the labor-relations context. For example, in U.S. Chamber of Commerce v. Brown, the Court explained that section 8(c), much like the First Amendment, promotes good decisionmaking by fostering free debate. In an election campaign, employees can make informed choices only when they hear from all parties, including their employers. Employers have an economic interest in keeping unions out, and so have an incentive to offer employees information unions will not. Employer speech thus produces a more balanced body of information and thus supports employee free choice. And in that way, the policies behind section 8(c) echo the philosophy underlying the First Amendment: in a free marketplace of ideas, the best will rise to the top.
That has not, however, been the view taken by the Board. Despite section 8(c) and decades of Supreme Court caselaw, the Board has continued to penalize employers for ordinary, noncoercive speech. Most recently, in Trinity Services Group, Inc., it held that a manager interfered with an employee’s statutory rights by blaming certain payroll problems on the union. The company maintained one leave-accrual system for union employees (dictated by the terms of a collective-bargaining agreement) and one for non-union employees. This dual system led to calculation errors. When an employee complained about one such error, her manager told her that it “was a problem the union created” and that she needed to “fix that with the union.”
In the Board’s view, these statements were “patently false.” The problem lay not with the union, but with the employer’s system. The statements had no “objective basis” in fact and tended to undermine faith in the union. They therefore interfered with the employee’s union activities, which were protected by the Act.
In response, the employer argued that the statements couldn’t violate the Act because they merely expressed an opinion. After all, section 8(c) protects employer speech as long as it contains no threats or promises of benefits. And the manager’s statements contained neither. But again, the Board disagreed. It explained that the statements were problematic not because they were threatening, but because they were misleading. It therefore found the employer guilty of violating the Act.
Perhaps inevitably, that line of reasoning ran aground in federal court. The DC Circuit refused to enforce the Board’s order, finding the Board’s reasoning incompatible with section 8(c). The court explained that section 8(c) contains no exception for inaccurate or misleading statements. Instead, it immunizes all employer speech, as long as the speech contains no threats or promises of benefits. The manager’s statements fell into neither category: they merely set forth his views on the relative blameworthiness of the union. So even if that opinion was “misguided, flimsy, or daft,” it was still protected by section 8(c).
The court expressed no view on whether section 8(c) protects more speech than the First Amendment—or indeed, whether it protects even as much. But its opinion was consistent with First Amendment principles. Nowhere in First Amendment jurisprudence can one find a “misleading statements” rule. Speech is often protected even when false, in part because we know that robust speech produces more information, and overly strict rules about accuracy would chill debate. And that principle applies no differently in union elections than it does in political ones. Voters make better decisions when they hear both sides of an issue. So to make sure both sides are heard, we need laws that protect speech even when it includes a stray inaccuracy or two.
On its face, section 8(c) offers exactly that kind of protection. Yet nearly seventy years after its adoption, it continues to carry too little weight with the Board. Board members from both parties continue to apply it as if it offered even less protection than the constitutional minimums. That approach makes little sense as policy and even less sense as law. We can hope, then, that Trinity Services marks a turning point in the Board’s approach. Maybe finally, after repeated admonishments from Congress and the courts, the Board will start respecting employer speech and promoting healthy debate. Only then will the law work as originally intended.
 See, e.g., Schult Trailers, 28 N.L.R.B. 975 (1941); Ford Motor Co., 23 NLRB 342 (1940); Southern Colo. Power Co., 13 N.L.R.B. 699 (1939), enforced, 111 F.2d 539 (10th Cir. 1940).
 314 U.S. 469, 478 (1941).
 29 U.S.C. § 158(c).
 S. Rep. No. 105 on S. 1126, 1 Legislative History of the Labor Management Relations Act 1947, 429–30 (1948).
 554 U.S. 60, 69 (2008). See also NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969) (explaining that section 8(c) “merely implements the First Amendment”).
 Richard A. Epstein, The Case Against the Employee Free Choice Act 28 (2009), https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1493&context=law_and_economics.
 See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (explaining that “the best test of truth is the power of the thought to get itself accepted in the competition of the market”).
 368 N.L.R.B. No. 115 (Nov. 20, 2019).
 Id., slip op. at 4 (citing Nat'l Labor Relations Bd. v. Ingredion Inc., No. 18-1155, at *7-8 (D.C. Cir. July 19, 2019)).
 Trinity Servs. Grp., Inc. v. NLRB, Nos. 20-1014, 20-1055 (D.C. Cir. June 1, 2021).
 See Epstein, supra note 5, at 28.
 See, e.g., N.Y. Times v. Sullivan, 376 U.S. 254, 279–80 (1964) (requiring more than mere falsity, but actual malice, to sustain a defamation claim by a public figure). But see Epstein, supra note 5, at 28 (observing that the amount of free speech allowed in union campaigns is significantly less than that allowed in political campaigns, where threats and promises are routine).
 Epstein, supra note 5, at 28 (arguing that employer speech improves employee decisionmaking in union elections). Cf. also Trinity Servs., Nos. 20-1014, 20-1055, slip op. at 6 (“Perhaps a no-misstatement rule would be good labor policy. Or perhaps not. But it is not the policy reflected in § 8(c).”).