Employers are Allowed to Give Opinions about Unions

Section 8(c) Gives Employers a Voice: Section 8(c) of the National Labor Relations Act generally allows employers to express their opinions – even negative opinions – regarding unions (so long as those opinions contain neither a threat nor promise). In Trinity Services Group, Inc. 998 F.3d 978 (D.C. Cir. 2021), the DC Circuit considered whether Section 8(c) protects opinions that the NLRB considers “baseless.”

There, a boss blamed the union for something in the collective bargaining agreement that his subordinate did not like. The NLRB found that comment baseless because both the union and the employer negotiated the collective bargaining agreement so the employer was just as much to blame as the union. On appeal, the Circuit Court said “Section 8(c) unambiguously protects ‘any views, argument, or opinion’ – even those that the agency finds misguided, flimsy, or daft.”

This case highlights the difficulty employers (and their labor attorneys) often face. Employers that lose at the NLRB level can often win on appeal. But it takes time and money to do that. The NLRB’s majority is currently pro-union and frequently views caselaw through union-colored glasses. Federal court judges are less prone to subjective rulings. Should the NLRB majority become pro-employer in the future, I’m sure unions will view Board decisions the same way.