Volume 77, Number 1

April 2002

Free Speech and the NLRB’s Laboratory Conditions Doctrine

Shawn J. Larsen-Bright

In response to worries that the National Labor Relations Board was protecting free speech insufficiently, particularly during representation election campaigns, Congress amended the National Labor Relations Act in 1947 to include section 8(c), which imposes broad restrictions on the Board’s ability to regulate speech under its unfair labor practice authority. The efficacy of that provision, however, is limited severely by the Board’s “laboratory conditions doctrine,” famously announced in General Shoe Corp., which expressly authorizes expansive regulation of representation election campaign speech under another of the Board’s statutory powers. In this Note, Shawn Larsen-Bright challenges the use of the laboratory conditions doctrine to regulate otherwise protected speech. Larsen-Bright argues that the doctrine is in serious tension with congressional intent and cannot be reconciled with modern free speech jurisprudence. He concludes by examining and endorsing a recent case arising under the Railway Labor Act in which the D.C. Circuit similarly and persuasively rejected laboratory conditions reasoning.