Date Filed: July 18, 2022
Original Court: U.S. District Court for the Eastern District of Texas
Appeals: U.S. Court of Appeals for the Fifth Circuit
Case Status: Closed
In 2022, the General Counsel of the National Labor Relations Board (NLRB) issued guidance expanding the definition of “unfair labor practices” under the National Labor Relations Act. This new interpretation prohibits employers from speaking to employees about unionization unless the meeting is completely voluntary to attend. Such an interpretation restricts employer speech on the basis of its content, viewpoint, and speaker in clear violation of the First Amendment of the U.S. Constitution. The guidance also chills employers’ speech about this topic in fear of potential prosecution.
CAF filed suit seeking a declaratory judgment and permanent injunction prohibiting NLRB from enforcing this unconstitutional guidance. Unfortunately, the courts did not allow this case to move forward because the NLRB had not taken an enforcement action against Burnett Specialists nore the other plaintiffs. Although the plaintiffs claimed that NLRB’s policy chilled its speech (and therefore violated the First Amendment) the court took an extremely narrow view of this claim by suggesting that the plaintiffs had not shown that they would be speaking to their employees about unionization in the immediate future. The en banc Fifth Circuit declined review of this decision. Thankfully, the NLRB’s new general counsel appointed by President Trump rescinded the policy shortly after taking office. CAF will monitor any attempts by future NLRB general counsels to reinstate this policy.
Case Documents:
Plaintiffs’ Response to Defendants’ Motion to Dismiss
Defendants’ Reply in Support of its Motion to Dismiss
Plaintiffs’ Surreply to Defendants’ Motion to Dismiss
Opinion and Order Granting Motion to Dismiss