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Special thanks to our summer associate Brianna Miller for her contributions to this post.

In Trinity Services Group, Inc. v. NLRB, No. 20-1014 (June 1, 2021), the US Court of Appeals for the DC Circuit recently rejected the National Labor Relations Board’s (NLRB) attempt to prohibit employers from expressing opinions the NLRB considers baseless. In reversing the NLRB, the Court held that the National Labor Relations Act (the “Act”) only prohibits employer speech containing a threat of reprisal or the promise of benefits, and that expressions which are merely “views, arguments or opinions” are not unlawful.

No threat of reprisal or promise of benefits means the statement–even if not based in fact–is not illegal

The case arose when an employee discovered a mix-up regarding the amount of her accrued paid leave. When she raised the issue with her supervisor, he pinned the blame on the union. The NLRB and the Court both found there was no objective basis for blaming the union rather than the employer for the mix-up.

The Court examined the provisions in Section 8(a)(1) of the NLRA, which proscribes certain speech. Section 8(a)(1) makes it unlawful for an employer to “interfere with, restrain or coerce employees” in the rights guaranteed by the Act. The Court also considered the provisions in Section 8(c) which guarantees parties freedom of speech, specifically that “[t]he expression of any views, argument, or opinion…shall not constitute an unfair labor practice.” The Court sought to reconcile the two provisions, and holding that only speech containing a threat of reprisal or promise of benefits is prohibited by the NLRA, while Section 8(c) protects “any” view, argument or opinion. The Court held the statement the NLRB found illegal contained neither a threat of reprisal or the promise of benefit and thus was not illegal. Undeterred by the plain meaning of the word “any,” the NLRB requested the Court to create an exception under Section 8(c) for statements which are “patently false.” The Court rejected that request as contrary to the plain language of the section.

Fact checking and the “laboratory conditions” standard

Experienced practitioners may find the NLRB’s position in Trinity Services surprising. The NLRB has steadfastly refused to “fact check” speech occurring during a union organizing campaign. During the period after the filing of a representation petition with the NLRB-the step which activates the NLRB’s election processes-the NLRB regulates campaign speech using the more rigorous “laboratory conditions” standard. Under this standard, speech which is not a violation of the Act may nonetheless be condemned, causing the election results to be set aside and a rerun election to be conducted. Yet when employers or unions charge the other with violating laboratory conditions by making patently false statements, the NLRB has refused to intervene by condemning them as violating laboratory conditions. As the NLRB explained in Midland National Life Ins., 263 N.L.R.B. 127 (1982), when it considers objections to campaign materials, it will not “probe into the truth or falsity of the parties’ campaign statements” unless forged documents are involved. Clearly, administrative consistency would have been appropriate.

Key points for employers

Given the current climate of competing fact checkers, the decision in Trinity Services is significant. The DC Circuit has the jurisdiction to hear appeals from NLRB decisions nationwide, so any employer (or union) charged with making blatantly false statements can obtain relief there. It is also clear that it is the language of the statute that matters and that the Court is not going to create exceptions that Congress itself did not adopt. The decision in Trinity Services sidelined any effort by the NLRB to fact check employers or unions, and to order remedies for “patently false” statements. For assistance with your labor and employment law needs, contact your Baker McKenzie employment attorney.