U.S. Chamber Challenges NLRB General Counsel's Attempt to Limit Employer Free Speech

The current General Counsel of the National Labor Relations Board (NLRB) has levied an assault on the very kinds of open discussion and free speech the National Labor Relations Act (the "Act") explicitly protects. The General Counsel seeks to stifle the open discussion of unionization and other labor relations issues by employing a creative—but, for the last 76 years, a consistently rejected—interpretation of the Act that seeks to effectively limit employer free speech rights while protecting the ability of unions to communicate. In other words, rather than seeking to empower employees to make informed decisions, the General Counsel wishes for workers to only hear one side of the story.

The General Counsel does this by obstructing employers’ ability to communicate with employees about Section 7 rights, to express certain viewpoints pertaining to Section 7 rights, and then by compelling employer speech. Moreover, the General Counsel has weaponized the Act against high profile employers in a transparent effort to chill yet more employer speech. And she does not stand alone—multiple states have passed arguably unconstitutional and preempted laws that clamp down on employers’ ability to communicate with employees about Section 7 rights and their views or opinions about those rights.

A corollary to free speech is workers’ ability to exercise the right to choose or reject union representation free from intimidation. While the General Counsel has been quick to oppose employers’ free speech rights, she has been less concerned about the potential for union intimidation when it comes to certification elections. Indeed, she is attempting to revive an antiquated and long-rejected doctrine known as Joy Silk that would require an employer to recognize a union without that union being elected by employees. This doctrine provides that an employer must recognize a union upon a sufficient showing of interest in the form of signature cards, which a union can obtain by any number of means. These include misleading workers about their capability to make changes in the workplace, harassing or intimidating employees into signing cards, or deceiving employees about the impact of signing a card (e.g. by telling workers that signed cards merely represent interest in a union election, and omitting the fact that signed cards could themselves be enough to allow a union into their workplace).

The combination of the General Counsel’s efforts to stifle free speech and circumvent the union election process creates an environment where workers are privy only to one side of the debate—the union side—and are susceptible to inadvertently and unknowingly opting into union representation. It is hard to imagine an environment more at odds with the goals of the Act.

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About the authors

Glenn Spencer

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.

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