NLRB General Counsel Jennifer Abruzzo recently tweeted her intention to push for two fundamental pro-union changes to U.S. labor law. Piggybacking on her August 12 memo detailing cases that must be submitted to advice, Abruzzo targeted employer free speech and the use of permanent replacements during economic strikes.
During a union campaign, an employer is limited in what it can communicate to employees regarding unionization. But Section 8(c) of the National Labor Relations Act provides that the “expression of any views” by an employer is lawful so long as it does not contain “a threat of reprisal or force or promise of benefit.”
Under the NLRB’s 1985 Tri-Cast decision, this has been interpreted to provide employers with broad freedom to speak with employees about the benefits and risks of unionization. Specifically, Tri-Cast dealt with a common talking point during a union campaign: that if employees vote in a union the employer and employees will no longer be able to work directly together, but rather will have to work through the union. The Board found that the statement was not unlawful, despite perhaps conflicting with the fact that employees have a statutory right to bring complaints directly to their employer, whether they have a union or not. Following precedent, the Tri-Cast Board declined to “probe into the truth or falsity of the parties' campaign statements.”
Abruzzo’s goal is to change that posture and push the Board to police employer...
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