Court Strikes Down Free-Speech Violating Poster Law

May 9th, 2013 by DWM Magazine

The U.S. Court of Appeals for the District of Columbia Circuit ruled against a federal rule Tuesday which would have required more than six million private-sector businesses to post signage informing employees of their right to form a union, claiming the rule would violate an employer’s right to free speech.

According to the opinion handed down by Judge A. Raymond Randolph, “Under the rule an employer’s failure to post the required notice constitutes an unfair labor practice … And the Board may consider an employer’s ‘knowing and willful’ noncompliance to be ‘evidence of antiunion animus in cases in which unlawful motive [is] an element of an unfair labor practice.’ … The Board, in other words, will use an employer’s failure to post the notice as evidence of another unfair labor practice.

“… Our doubt stems, in part, from a comparison of § 8(c) with the law established under the First Amendment,” continues Judge Randolph in the opinion. “We approach the question by considering some firmly established principles of First Amendment free-speech law. The first is that the ‘dissemination’ of messages others have created is entitled to the same level of protection as the ‘creation’ of messages.”

According to Randolph, allowing businesses to post the rule was not of concern, but rather, requiring and enforcing posting of the rule violated the First Amendment.

“… Of course we are not faced with a regulation forbidding employers from disseminating information someone else has created. Instead, the Board’s rule requires employers to disseminate such information, upon pain of being held to have committed an unfair labor practice. But that difference hardly ends the matter. The right to disseminate another’s speech necessarily includes the right to decide not to disseminate it,” he writes in the opinion.

Subsequently, Judge Randolph concludes 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.”

As the motivating force behind the rule, the National Labor Relations Board (NLRB) would have required the poster to be placed in a conspicuous place within the work environment, informing employees of their right to unionize, and conversely, of their right to not join.

“The poster rule is a prime example of a government agency that seeks to fundamentally change the way employers and employees communicate,” says Jay Timmons, president and CEO of the National Association of Manufacturers, one of the named plaintiffs in the case. “The ultimate result of the NLRB’s intrusion would be to create hostile work environments where none exist. The U.S. Court of Appeals has rightfully ruled that the NLRB has no authority to enforce notice posting. Stopping the NLRB’s burdensome agenda of placing itself into manufacturers’ day-to-day business operations is essential to preventing further government-inflicted damage to employee relations in the United States.”

The National Lumber and Building Material Dealers Association (NLBMDA) was also pleased with the court’s decision.

“NLBMDA agrees with the court’s ruling that the NLRB does not have the authority to issue the poster requirement,” says Michael O’Brien, NLBMDA president and CEO. “The decision by the D.C. Circuit Court is welcome news and hopefully will help the NLRB strike a better balance between the rights of employers and employees.”

Casey Neeley is the assistant editor of DWM magazine.

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