Appeals court tosses NLRB’s workers rights poster rule

WASHINGTON – In yet another victory for big business handed down by GOP-named judges, a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia tossed the National Labor Relations Board’s rule ordering employers to put up posters advising workers of their rights – including their rights to join unions.

The NLRB had no immediate comment, a spokesman said, but is considering whether to appeal the decision to the full D.C. Circuit Court or to the U.S. Supreme Court. AFL-CIO President Richard Trumka called the ruling “radical” and “absurd.”

The judges’ ruling in the workers’ rights poster case is the second major defeat in five months for the NLRB in the D.C. court, often called the second-most-powerful court in the nation, because it rules on the legality of agency decisions.

The prior loss was when the D.C. Circuit ruled that President Obama’s recess appointments to the NLRB – and the decisions they voted on – are illegal. That leaves the board without a quorum to act and could bring it to a halt.

The latest decision is also a defeat for unions championing the rule, which features a poster repeating the section of the National Labor Relations Act giving workers the right to form and join unions, or not. It also lists other NLRA protections.

Appellate Judge A. Raymond Randolph said the NLRB should never have tried proposing the rule, much less writing it. “The board’s action departs from its historic practice. From its inception in 1935, the board has exhibited a ‘negative attitude’ towards setting down principles in rulemaking, rather than adjudication,” he said.

The judges also slammed the NLRB’s rule as too broad. “Although section 8(c)” of the 1947 Taft-Hartley Act, which rewrote labor law, “precludes the board from finding non-coercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the board’s rule does both,” Randolph’s ruling says.

The GOP-run 80th Congress passed the GOP-drafted Taft-Hartley, essentially gutting the National Labor Relations Act, over Democratic President Harry S Truman’s veto, in 1947. But the judges went beyond the NLRB’s specific rule in their decision.

“We are not faced with a regulation forbidding employers from disseminating information someone else has created,” they declare. “Instead, the board’s rule requires employers to disseminate such information, upon pain of being held to have committed an unfair labor practice.

“That difference hardly ends the matter. The right to disseminate another’s speech necessarily includes the right to decide not to disseminate it,” the judges said.

“1st Amendment law acknowledges this apparent truth: ‘All speech inherently involves choices of what to say and what to leave unsaid.'”

Predictably, the National Association of Manufacturers, which sued the NLRB over the poster rule, crowed in victory. Trumka said the “radical” decision endangers not just worker rights but all sorts of federal protections for citizens.

“Republican judges of the D.C. Circuit continue to wreak havoc on workers’ rights. After attempting to render the NLRB inoperable, the D.C. Circuit once again undermined workers’ rights, this time by striking down a common-sense rule requiring employers to inform workers of their rights under federal labor law,” he said.

“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. The ruling suggests courts should strike down hundreds of notice requirements, not only those that inform workers about their rights and warn them of hazards, but also those on cigarette packages, in home mortgages and many other areas.

“The court’s twisted logic finds that ‘freedom of speech’ precludes the government from requiring employers to provide certain information to employees. This is absurd: When workers know their rights, the laws work as intended,” Trumka said.

Photo: The appeals court ruling makes it optional for employers to inform workers of their rights on public bulletin board spaces on the job.


Mark Gruenberg
Mark Gruenberg

Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of Press Associates Inc. (PAI), a union news service in Washington, D.C. that he has headed since 1999. Previously, he worked as Washington correspondent for the Ottaway News Service, as Port Jervis bureau chief for the Middletown, NY Times Herald Record, and as a researcher and writer for Congressional Quarterly. Mark obtained his BA in public policy from the University of Chicago and worked as the University of Chicago correspondent for the Chicago Daily News.