The U.S. Court of Appeals for the District of Columbia Circuit ruled that the National Labor Relations Board (NLRB) cannot require nearly six million U.S. employers to post its controversial Employee Rights Notice.
The NLRB argued it had both authority and the need for the posting requirement, arguing that the rule was necessary because employees were not aware of their rights under the Act, and employers subject to NLRB jurisdiction would be guilty of an unfair labor practice if they did not display the posting.
In addition to finding that the NLRB ignored congressional intent by issuing the rule, the Court found two of the rule’s three enforcement mechanisms violated employers’ free speech.
‘Like the freedom of speech guaranteed in the First Amendment, § 8(c) [of the Act] necessarily protects…the right of employers (and unions) not to speak… The right to disseminate another’s speech necessarily includes the right to decide not to disseminate it.
Plaintiffs here, like those in other compelled-speech cases, object to the message the government has ordered them to publish on their premises. They see the poster as one-sided, as favoring unionization, because it ‘fails to notify employees…of their rights to decertify a union, to refuse to pay dues to a union in a right-to-work state, and to object to payment of dues in excess of the amounts required for representational purposes.’
The three-judge panel noted that their ruling would not affect the NLRB’s rule requiring employers to post an election notice before a representation election.