You'll lose because it isn't unfair or anti-trust. It's not nice, but there's nothing illegal about it.
The first amendment is widely interpreted to mean that you can't compel speech. Requiring a company to write recommendation letters would be compelling speech. That would be unconstitutional.
(And it doesn't matter if an individual manager would like to write a letter of recommendation but corporate policy is against it. The manager is paid by the company, would be sharing company information, and is an agent of the company in this regard.)
> Requiring a company to write recommendation letters would be compelling speech
It would, but that's not what's being discussed.
The accusation is that the companies are restricting speech by saying that managers cannot provide a reference, even if they clearly state in said reference that the views are their own and not that of their employer. Nobody is trying to compel anyone else to provide a reference, the idea is that nobody should be prohibited from it, especially since for long term employees leaving on good terms their manager(s) is/are probably one of their best references.
Companies are allowed to restrict speech by their employees about company information. Otherwise everyone would be allowed to leak every trade secret.
A manager's evaluation of another employee's performance is internal company information. There's no reason that a company should be compelled to share that information externally.
It doesn't matter if the manager wants to share it, any more than the manager wants to share all the source code the employee has written.
Companies are allowed to determine what gets shared by their current employees, end of story. On the other hand, it is unconstitutional for the government to override that.
There are exceptions for things like public companies that are compelled to release certain data on a quarterly basis in exchange for the benefits of being publicly traded. And plenty of information can be compelled to be shared privately with the government, whether taxes or for health inspections or whatever.
But absolutely not forcing companies to allow their employees to talk publicly about other employees' performance.
Managers and supervisors are not protected by the NLRA, so whether they might like to provide a reference isn't really a matter of concern for the NLRB. (In practice, managers provide references informally all the time, and I can't imagine a company actually taking action against them for that unless the reference causes some huge problem.)
I know a manger at my company that provided a reference and was reprimanded for it. They even told him I'd he ever does it again, he's fired. I heard of at least one other manager who was actually fired.
If there were a formal company policy, I'd probably either demure or, if I felt strongly about it, make sure it was over beers at the bar or in some other venue that there was no record.
The first amendment is widely interpreted to mean that you can't compel speech. Requiring a company to write recommendation letters would be compelling speech. That would be unconstitutional.
(And it doesn't matter if an individual manager would like to write a letter of recommendation but corporate policy is against it. The manager is paid by the company, would be sharing company information, and is an agent of the company in this regard.)