Ex-NLRB Chair Says Employer Gag Order ‘Unenforceable’

Legislation drastically limiting communications in Connecticut workplaces will not withstand legal challenges if passed into law according to a former head of the National Labor Relations Board.

Philip Miscimarra, an Obama administration appointee to the NLRB who served from 2013 to 2017, including a period as chair, says the legislation “directly conflicts with the National Labor Relations Act.”

The General Assembly is considering two bills—SB 64 and SB 440—that prevent employers from discussing anything defined as a “political matter,” including legislation or regulations that impact business, with employees.

Miscimarra, a labor and employment attorney with over 30 years in private practice, said either bill will likely be overturned if enacted into law by the legislature.

“I believe the legislation would likely be declared invalid and unenforceable because it is preempted by the NLRA, and the legislation may also be deemed an unconstitutional restriction on free speech and the exercise of free religion under the First Amendment,” Miscimarra said.

‘Direct Assault’ on Free Speech

He predicts that if the bill is enacted, it’s likely to face a legal challenge “based on the legislation’s prohibition against various types of employer speech protected by the NLRA and the First Amendment.”

In addition, he said, the legislation and related litigation impose significant burdens, expense, and uncertainty on Connecticut employers, employees, and unions.

The so-called captive audience bills are a direct assault on the free speech rights of employers and a clear violation of federal law.

CBIA’s Louise DiCocco said the so-called captive audience bills are “a direct assault on the free speech rights of employers and a clear violation of federal law.”

“These bills ignore the fact that the National Labor Relations Act has exclusive authority over law governing relations between unions and private sector employees,” she said.

“The legislation not only dictates how management interacts with its employees, but reflects an adversarial attitude toward business in Connecticut.”

Legal Opinions

Legislators continue to resurrect the employer gag order bills —which are supported by state employee unions—despite numerous legal opinions challenging the legality of such measures.

In the 2018 legislative session, then-Attorney General George Jepsen told lawmakers the U.S. Supreme Court “has long held that Congress, through the enactment of the NRLA, has preempted state law.”

That followed a similar opinion Jepsen issued in 2011, also in response to a bill restricting employers’ free speech rights.

The legislature’s Labor and Public Employees Committee approved SB 64 on a 12-4 party line vote last month. It now awaits action in the state Senate.

The Judiciary Committee has yet to act on SB 440.

Miscimarra agrees with Jepsen’s 2018 opinion, which he said “would apply with equal force to SB 440.”

Competing Interests

Miscimarra noted supporters of SB 440 argue that the bill was recast to focus on local concerns and portrays employees as unwilling listeners whose interests should override the free speech rights of employers.

“However, the undeniable purpose and effect of SB 440 is to directly regulate workplace conduct involving the competing interests of employees, employers, and unions in relation to union representation,” he said.

“For more than 80 years, balancing these interests has been the difficult and delicate responsibility vested exclusively in the National Labor Relations Board, subject to review in federal courts.”

The undeniable purpose and effect of the legislation is to directly regulate workplace conduct involving the competing interests of employees, employers, and unions.

Former NLRB chair Philip Miscimarra

Miscimarra referenced a 1953 case involving the Livingston Shirt Corp., as proof NLRB has already “carefully considered and rejected the argument that employees should be protected from the discussion of union representation in meetings held on the employer’s premises.”

The Connecticut Airport Authority, the Connecticut Hospital Association, the National Federation of Independent Business, the Associated Builders and Contractors of Connecticut, and the Connecticut Heating and Cooling Contractors Association are among the organizations opposing the legislation.

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For more information, contact CBIA’s Louise DiCocco (860.244.1169) | @LouiseDiCocco