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Employers can't be forced to display pro-union posters, court rules

The Obama administration had mandated that businesses put up posters informing workers of their rights to organize in unions. A federal appeals court struck down the rule Tuesday.

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That section of the statute says in part: “The expressing of any views … whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of the [Act], if such expression contains no threat of reprisal or force or promise of benefit.”

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Senior Judge A. Raymond Randolph said in the main opinion that the provision bars the labor relations board from finding noncoercive speech by an employer to be an unfair labor practice.

The First Amendment protects not just the right to speak, but also the right not to speak, the judge said. The government may not dictate a message and then punish those who refuse to deliver it, he said.

Government lawyers had defended the notice requirement, saying the poster featured the speech of the labor relations board, not of any employer.

The provision was passed by the NLRB out of concern that American workers may not be aware of their rights in the workplace. The board expressed concern that unions currently represent only 7.3 percent of the private workforce in the US. It also said that immigrants and high-school students about to enter the workforce are not familiar with labor laws.

Trade associations and business groups complained that the poster was one-sided, favoring unions. It did not advise employees of their right to decertify a union or their right to refuse to pay union dues in a right-to-work state, they said.

Two of the judges said they would go even further than Judge Randolph and declare that the NLRB is without any legal authority to force employers to display such signs in the workplace.

The federal labor relations law “simply does not authorize the Board to impose on an employer a freestanding obligation to educate its employees on the fine points of labor relations law,” wrote Judge Karen Henderson in a concurring opinion joined by Judge Janice Rogers Brown.

Judge Henderson said although federal agencies enjoy broad rulemaking powers, the NLRB went beyond its authority in enacting the new rule.

The so-called poster rule was not “necessary and proper,” to carry out the congressionally-enacted provisions of the labor relations act, she said.

“Such general rulemaking authority, although facially broad, does not mean that the specific rule the agency promulgates is a valid exercise of that authority,” she wrote.

“An agency … is bound not only by the ultimate purposes Congress has selected, but by the means it has deemed appropriate, and prescribed, for the pursuit of those purposes,” Henderson added.

Trumka noted that all three judges on the panel had been nominated by Republican presidents. “The Republican judges of the DC Circuit continue to wreak havoc on workers’ rights,” he said.

The case is National Association of Manufacturers v. National Labor Relations Board (12-5068).


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