Vice President, Labor Policy
April 14, 2022
The General Counsel of the National Labor Relations Board (NLRB), Jennifer Abruzzo, issued a memorandum on April 7 announcing that she will ask the Board to find that meetings at which employers express their views on union organizing are a violation of the National Labor Relations Act (NLRA). Should the Board accept her proposal, it would deliberately muzzle employers and restore a doctrine abandoned decades ago.
The General Counsel’s view is at odds with the NLRA and well-established Board and court precedents regarding the free speech rights of employers, as the General Counsel’s memo itself seems to suggest. In fact, the NLRA explicitly states that “the expressing of any views, argument, or opinion” about union issues does not constitute an unfair labor practice provided that it does not include threats of reprisal or promises of benefits.
Despite that provision, the General Counsel argues that Section 7 of the NLRA—a favorite subject of expansive interpretation during the Obama era—prohibits employers from requiring employees to convene to discuss union issues while on paid time or while performing their job duties. In both situations, the General Counsel opines that “employees constitute a captive audience deprived of their statutory right to refrain, and instead are compelled to listen by threat of discipline, discharge, or other reprisal—a threat that employees will reasonably perceive even if it is not stated explicitly.”
The problem is that the history of this issue belies that argument, and the General Counsel outlines that history right in her memo. As it explains, “[o]ver 75 years ago, the Board recognized that the Act protects employees’ right … to refrain from listening to employer speech concerning the exercise of their Section 7 rights.” That recognition came in the form of the NLRB’s 1946 decision in Clark Brothers Co., Inc., which was upheld by a federal circuit court the next year.
In his dissent in Clark Brothers, NLRB member Gerard D. Reilly observed that in 1941 the Supreme Court issued a decision in NLRB v. Virginia Electric & Power Co., which “specifically held that an employer's right to express his opinion … with respect to issues of labor organization was protected … if it fell short of being coercive.” Subsequent Court decisions reiterated that position and rejected the Clark Brothers circuit decision, but Reilly noted that “there has been a disturbing tendency by the Board to return to its old line of decisions” by finding employer speech to be coercive and unlawful.
Then, in 1947, Congress enacted several amendments to the NLRA, including Section 8(c), which explicitly allowed employers to express their views about labor organizing absent a threat of reprisal or promise of benefit. The NLRB recognized that change the following year in its Babcock and Wilcox decision, in which it said “the language of Section 8(c) of the amended [NLRA], and its legislative history, make it clear that the doctrine of the Clarke Bros. case no longer exists as a basis for finding unfair labor practices.”
As recently as 2008, the Supreme Court underscored its recognition of employers’ speech rights in Chamber of Commerce of United States v. Brown in which it said the “policy judgment that partisan employer speech necessarily ‘interfere[s] with an employee’s choice about whether to join or to be represented by a labor union’ … is the same policy judgment that the NLRB advanced under the Wagner Act [of 1935], and that Congress renounced in the Taft-Hartley Act [of 1947].”
The General Counsel’s current effort to return to policy positions rejected by both Congress and the Supreme Court depends on a splitting of hairs about when it is unlawful for an employer to voice its opinions about labor issues. If the Board adopts her view, one can expect that the courts will have to address the question yet again.