In today’s News and Commentary, an administrative law judge holds that Yapp USA Automotive Systems, Inc. violated the NLRA, and the Eighth Circuit has oral arguments on two labor cases.

Yesterday, Administrative Law Judge Gladys Ramirez held that Yapp USA committed a series of unfair labor practices. ALJ Ramirez declined to issue a Cemex bargaining order in response, instead ordering a cease and desist. Yapp USA has a parallel case in the Sixth Circuit, where the company is arguing that parts of the NLRB are unconstitutional. Workers at Yapp USA lost their election last year. ALJ Ramirez found that the unfair labor practices that occurred prior to the critical period were “isolated and minimal.” Among these were unlawful surveillance and interrogation by a former manager and repeated threats of discipline from that same manager for engaging in union activity. During the election period, Yapp USA’s unlawful activity of providing benefits in the form of catering and a bowling event to dissuade employees from unionizing did not rise to the level of “substantial interference” to warrant a Cemex bargaining order. Oral arguments for the Sixth Circuit case challenging the constitutionality of the NLRB are today.

On Wednesday, attorneys for Home Depot argued before the Eighth Circuit that the NLRB unlawfully infringed on the company’s first amendment rights. The NLRB had ruled that the company violated labor law by firing at least one Minnesota employee who refused to take off a Black Lives Matter pin in violation of a store policy against wearing political messages on aprons. The NLRB had ordered Home Depot to reinstate the employee. Home Depot urged the court to rule in favor of employer speech rights and argued that the activity should fall into the “special circumstances” exception for business purposes. Attorneys for Home Depot argued the company enacted and enforced the policy because the message was controversial and would deter customers, while the attorney for the NLRB argued that Home Depot did not provide evidence supporting the danger of losing customers.

In another Eighth Circuit case, business groups argued that Governor Tim Walz’s comments about violators of Minnesota’s captive audience meeting ban warranted a pre-enforcement lawsuit because they constituted proof of imminent enforcement. Business groups are challenging the state law both on First Amendment grounds and as a violation of employer rights under the NLRA. Last year, Walz stated that violators of the ban would “go to jail” at a union event. According to Bloomberg, the appellate judges were skeptical that the language was anything more than political rhetoric, since the captive audience law does not have criminal penalties. The government is arguing that the case should be dismissed on sovereign immunity grounds under the Eleventh Amendment unless the business groups can show a threat of imminent enforcement. The government seeks reversal on the district court’s denial of the its motion to dismiss the case.