Employers Don’t Have to Publicize Union Rights

(CN) - The National Labor Relations Board cannot require employers to have their properties and websites display union rights posters, the D.C. Circuit ruled.

In a concurring opinion, two of the judges with the federal appeals court called the so-called posting rule "aggressively prophylactic."

It would have required employers subject to the National Labor Relations Act to put up posters in the workplace informing employees of their rights under Section 7 of the NLRA, which defines protected activity such as the right to bargain collectively.

The NLRB expected the posting rule to affect about 6 million small businesses. After proposing it in 2010 and generating more than 7,000 public comments, the NLRB issued a final rule on Aug. 30, 2011. The effective date of the rule was extended from Nov. 14, 2011, to April 30, 2012, but it has been stalled pending the legal challenges brought by trade associations and other organizations.

Leading the charge in U.S. District Court was the National Association of Manufacturers, which claimed that the rule violated the NLRA and the First Amendment.

After both parties filed motions for summary judgment, a federal judge upheld the posting requirement under Section 6 of the labor law. The D.C. court said this section authorized the NLRB to promulgate the posting rule, which it said was reasonably related to the purposes of the act.

It upheld the posting rule even after invalidating two other provisions under Section 8(c) of the NLRA, which defines expressions as unfair labor practices if they contain a threat of reprisal or force or promise of benefit.

The two invalidated provisions included a "blanket advance determination that a failure to post will always constitute an unfair labor practice," and a toll of the limitations period if the employer failed to post the notice.

A three-judge panel of the D.C. Circuit vacated the posting rule on May 7, finding that "the board's action departs from its historic practice."

They took little heed of the board's argument that its rule does not qualify as impermissibly compelled speech under the First Amendment since the message at issue is "non-ideological."

"The right against compelled speech is not, and cannot be, restricted to ideological messages," Judge R. Raymond Randolph wrote for the panel.

"Like the freedom of speech guaranteed in the First Amendment, § 8(c) necessarily protects - as against the board - the right of employers (and unions) not to speak. This is why, for example, a company official giving a noncoercive speech to employees describing the disadvantages of unionization does not commit an unfair labor practice if, in his speech, the official neglects to mention the advantages of having a union.

"We therefore conclude that the board's rule violates § 8(c) because it makes an employer's failure to post the Board's notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus in cases involving, for example, unlawfully motivated firings or refusals to hire - in other words, because it treats such a failure as evidence of an unfair labor practice."

The court said it would not consider whether the board had regulatory authority to promulgate the rule "because all three of the means for enforcing the board's posting requirement are invalid."

Judge Janice Rogers Brown joined Judge Karen LeCraft Henderson in a concurring opinion that said the board did not have authority to promulgate the posting rule.

The NLRA - and section 6 in particular - 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," Henderson wrote.

"In sum, given the act's language and structure are manifestly remedial, I do not believe the Congress intended to authorize a regulation so aggressively prophylactic as the posting rule."

The panel said the board's rule was not automatically invalidated by unconstitutional appointments President Barack Obama made during an intrasession adjournment of the Senate. This is because only one of the board's four members had a constitutionally invalid appointment at the time the board published its proposed notice-posting rule in the Federal Register in December 2010.

"The board can lawfully act with a quorum of three members," Randolph wrote.

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