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

A federal appeals court in Washington has struck down an Obama administration rule that required nearly 6 million businesses to display posters announcing that their employees have rights to organize or join a labor union.

The rule, enacted in 2011 by the National Labor Relations Board, said failure to display the notice in the workplace and on a company’s website would be deemed an unfair labor practice.

The three-judge panel of the US Court of Appeals for the District of Columbia Circuit voted unanimously on Tuesday to invalidate the measure.

Labor leaders said the decision was a setback that would undermine workers’ rights. Business groups hailed the opinion as an important victory.

“The poster rule is a prime example of a government agency that seeks to fundamentally change the way employers and employees communicate. The ultimate result of the NLRB’s intrusion would be to create a hostile work environment where none exists,” said Jay Timmons, president of the National Association of Manufacturers, which challenged the rule in court.

AFL-CIO President Richard Trumka denounced the decision. “In today’s workplace, employers are required to display posters explaining wage and hour rights, health and safety and discrimination laws, even emergency escape routes,” he said. “The Court’s twisted logic finds that ‘freedom of speech’ precludes the government from requiring employers to provide certain information to employees.”

Mr. Trumka added: “This is absurd: when workers know their rights, the laws work as intended.”

Though the rule was enacted, it never took effect, because lawsuits against it resulted in an injunction against the posters.

Critics see the measure as part of an aggressive effort within the Obama administration to use the rulemaking authority of federal agencies to bypass congressional inaction or opposition in key areas, including immigration and health care.

The judges said the poster rule violated a section of the National Labor Relations Act written to uphold the free speech rights of employers to engage in an open, noncoercive exchange of ideas concerning labor relations and workplace issues.

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.”

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).