Union poster rule struck down in court

A federal appeals court on Tuesday struck down regulations that would require employers to display posters about union rights.

The court said the National Labor Relations Board (NLRB) overstepped its authority when it mandated that businesses place notices in the workplace and on their company websites informing employees of their right to unionize. Businesses that failed to comply would have faced charges of promoting “unfair labor practices.”

The NLRB’s last recourse to save the poster rule is now an appeal to the Supreme Court. There is a separate appellate case on the issue pending before a federal court in South Carolina, and the NLRB said it is awaiting that decision.

Industry groups, which quickly challenged the rule after it was issued, cheered the ruling. Jay Timmons, the president and chief executive of the National Association of Manufacturers, pledged to remain vigilant against the “rogue” NLRB.

“The poster rule is a prime example of a government agency that seeks to fundamentally change the way employers and employees communicate,” Timmons said in a statement. “The ultimate result of the NLRB’s intrusion would be to create hostile work environments where none exist.” 

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Judge A. Raymond Randolph, who wrote the decision for the U.S. Court of Appeals for the District of Columbia, suggested the rule was a clear violation of free speech rights because the government “selected the message and ordered its citizens to convey that message.”

Freedom of speech, Randolph wrote, “includes both the right to speak freely and the right to refrain from speaking at all.”

The court did not rule on whether the union poster regulations were constitutional, deciding only that the NLRB exceeded its legal mandate.

The nation’s largest labor federation slammed the decision. AFL-CIO President Richard Trumka said recent decisions by Republican-appointed judges on the district court are “wreak[ing] havoc on workers’ rights.”

"This is absurd: when workers know their rights, the laws work as intended," Trumka said in a statement. "The court’s twisted logic finds that 'freedom of speech' precludes the government from requiring employers to provide certain information to employees."

Trumka said the court ruling suggests employers should also be freed from requirements to display posters about “wage and hour rights, health and safety and discrimination laws, even emergency escape routes.”

In its court arguments, the NLRB said that the posters were necessary because “unions now represent only a small percentage of the private workforce, by the latest count just 7.3 percent.” Further, “Immigrants make up an increasing proportion of the nation’s work force and are unlikely to be familiar with their workplace rights.”

Young adults and high school students, the NLRB argued, are also not likely to be “familiar with labor laws.”

The informational posters were mandated to be at least 11-inches by 17-inches and have text crafted by the NLRB, which explained unionizing rights and an employee’s rights under the National Labor Relations Act.

Business groups argue the NLRB has favored unions under President Obama's administration and pointed to the poster rule as one of the most egregious examples.
 
“Today’s decision is a monumental victory for small-business owners across this country who have been subject to the illegal actions of a labor board that has consistently failed to act as a neutral arbiter, as the law contemplates,” Karen Harned, executive director of National Federation of Independent Business's Small Business Legal Center, said in a statement.

The advocacy group National Right to Work called the NLRB’s poster rule an “outrageous effort to transform itself into a taxpayer-funded arm of union organizing.”

This is the second major court defeat for the NLRB in recent weeks. The same appeals court ruled in January that Obama’s recess appointments to the board were illegal and therefore invalid. The independent agency is tasked with prosecuting unfair labor practices and conducting union elections.

“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,” Timmons said.

— This story was updated at 2:42 p.m. and 3:30 p.m.