Senior Vice President, Employment Policy Division, U.S. Chamber of Commerce
February 27, 2023
As this blog has noted here and here, the National Labor Relations Board (NLRB), and specifically the General Counsel (GC), is pursuing an ongoing campaign against employer free speech, in the process disregarding the views of the Supreme Court and overwhelming congressional passage of the Taft-Hartley Act.
The campaign thus far has focused on trying to prevent employers from speaking out. In a new twist, however, the NLRB is now trying to force employers to engage in certain speech. Unfortunately for the NLRB, compelled speech is just as legally dubious as restricted speech.
As Bloomberg reported (subscription required), the NLRB is calling for changes to standard remedies in unfair labor practice cases. Specifically, the agency wants to compel company officials to read out notices of violations to workers, presumably at a company staff meeting. Currently a notice of a violation is posted in the workplace and if a public reading of said violation is required, an NLRB agent can provide the reading with company managers present.
There is a long history of cases dealing with the legality of compelled government speech. Particularly relevant to the NLRB’s intention here is a 2020 case from the Sixth Circuit, in which the Court struck down an effort by the Board to force management officials to publicly read out a notice of violation. In that case, the Court found that “[I]t is foreign to our system to force named individuals to speak prescribed words to attain rehabilitation or to enlighten an assembled audience.”
Going further, the Court wrote (citing a 5th Circuit case): “Such orders mandate a ‘confession of sins’ and conjure up ‘the system of “criticism-self-criticism” devised by Stalin and adopted by Mao.’” To dispense with any doubt, the Court went on to write that such forced readings run “headlong into the Supreme Court’s recognition that compelled speech violations extend to situations ‘where the complaining speaker’s own message was affected by the speech it was forced to accommodate.’”
One would think such clear direction from multiple circuit courts would end the matter. Yet the NLRB and the GC seem to operate as though court rulings are mere suggestions, and that the Taft-Hartley Act and its free speech protections enshrined in Section 8(c) had never been passed. Unfortunately, it’s going to take additional litigation to remind the NLRB that while it can enforce the limited statute with which it is entrusted, it is not a law unto itself.
About the authors
Spencer oversees the Chamber’s work on immigration, retirement security, traditional labor relations, human trafficking, wage hour and worker safety issues, EEOC matters, and state labor and employment law.