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No appeal: Pro-union NLRB posters won’t advance to Supreme Court

By   /   January 7, 2014  /   No Comments

By Eric Boehm | Watchdog.org

An effort by the National Labor Relations Board to require businesses to post pro-union information in workplaces has been defeated.

POSTERIZED: The NLRB's employees rights poster trampled on the rights of the employers, according to eight different federal judges who have heard the case.

POSTERIZED: The NLRB’s employees rights poster trampled on the rights of the employers, according to eight different federal judges who have heard the case.

The NLRB said in a statement Monday it decided not to appeal two federal court rulings that struck down a rule requiring most private sector businesses to display a poster informing workers of their rights, including the right to unionize. Business groups had challenged the rule in court, arguing it was a violation of employers’ right to free speech.

The posters in question are 11″ x 17″ and list the rights protected by the National Labor Relations Act, including the “right of employees to organize and bargain collectively with their employers.” The posters are available in 27 different languages.

The NLRB approved the poster rule in August 2011, but a three-judge panel for the U.S. Court of Appeals for the D.C. Circuit struck down the rule in May 2013. Another panel for the U.S. Court of Appeals for the Fourth Circuit followed suit in June 2013.

The NLRB had until last week to file an appeal to the U.S. Supreme Court, but declined to do so.

“The NLRB remains committed to ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act,” the board said in a statement Monday afternoon. “Therefore, the NLRB will continue its national outreach program to educate the American public about the statute.”

The workplace poster is still available on the NLRB website, where it can be voluntarily displayed at the discretion of individual employers, the board said.

Business groups hailed the victory over what they said was the pro-union message included in mandatory NLRB posters.

Mark Mix, president of the National Right to Work Foundation, an anti-union nonprofit, said the NLRB was forced to listen to the “unanimous voice of the judiciary” after a total of eight federal judges ruled the poster requirement to be unlawful.

By promulgating this sweeping new requirement, the NLRB clearly overstepped its statutory authority in a heavy-handed attempt to force more workers into forced unionism ranks,” Mix said.

The Associated Builders and Contractors, a coalition of non-union employers in the building trades, had been at the forefront of the legal battle over the poster.

In court, the group argued the posters were significantly different from the traditional worker safety posters that have been made mandatory for some workplaces because they contained political messages that were “biased and incomplete” regarding the supposed benefits of joining unions.

WHERE THE BUREAUCRATS HIDE: Though the NLRB poster case is settled, a new lawsuit is challenging a similar requirement created by executive order in 2009 and enforced by the U.S. Department of Labor.

WHERE THE BUREAUCRATS HIDE: Though the NLRB poster case is settled, a new lawsuit is challenging a similar requirement created by executive order in 2009 and enforced by the U.S. Department of Labor.

In striking down the poster requirement, the two appeals courts agreed the rule violated the free speech rights of employers by forcing them to display the posters.

The Fourth Circuit ruling went even further, concluding the NLRB didn’t have the legal authority to make the rule in the first place, as Congress had not directed it to do so.

Because the Board is nowhere charged with informing employees of their rights under the NLRA, we find no indication in the plain language of the [NLRA] that Congress intended to grant the Board the authority to promulgate such a requirement,” wrote Judge Allyson Kay Duncan.

But the NLRB’s decision to abandon its appeal doesn’t mean the poster issue is settled for good.

Rules issued in 2009 by the U.S. Department of Labor require all federal contractors and subcontractors to display the same posters. The rule affects about 16 million workers and is similarly being challenged in court.

The National Association of Manufacturers and the Virginia Manufacturers Association filed a lawsuit last month in the U.S. District Court for the District of Columbia challenging the DOL poster requirement, which was created in 2009 by executive order.

Linda Kelly, senior vice president and general counsel for NAM, said the court rulings on the NLRB posters should inform the debate over the DOL requirement.

“The courts have already ruled that these posters amount to compelled speech and extend beyond the intent of the National Labor Relations Act — federal contractors deserve the same protection from this aggressive overreach,” Kelly said in a statement.

In creating that rule in January 2009, President Obama wrote that it was intended to “promote economy and efficiency in government procurement.”

When the federal government contracts for goods or services, it has a proprietary interest in ensuring that those contracts will be performed by contractors whose work will not be interrupted by labor unrest,” Obama wrote. “The attainment of industrial peace is most easily achieved and workers’ productivity is enhanced when workers are well informed of their rights under federal labor laws.”

But five years later, the legal battles continue.

Boehm is a reporter for Watchdog.org and can be reached at EBoehm@Watchdog.org. Follow @WatchdogOrg and @EricBoehm87 on Twitter for more.

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Eric is a reporter for Watchdog.org and former bureau chief for Pennsylvania Independent. He lives in Minneapolis, Minnesota, where he enjoys great weather and low taxes while writing about state governments, pensions, labor issues and economic/civil liberty. Previously, he worked for more than three years in Harrisburg, Pennsylvania, covering Pennsylvania state politics and occasionally sneaking across the border to Delaware to buy six-packs of beer. He has also lived (in order of desirability) in Brussels, Belgium, Pennsburg, Pa., Fairfield, Conn., and Rochester, N.Y. His work has appeared in Reason Magazine, National Review Online, The Freeman Magazine, The Philadelphia Inquirer, The Washington Examiner and elsewhere. He received a bachelor's degree from Fairfield University in 2009, but he refuses to hang on his wall until his student loans are fully paid off sometime in the mid-2020s. When he steps away from the computer, he enjoys drinking craft beers in classy bars, cheering for an eclectic mix of favorite sports teams (mostly based in Philadelphia) and traveling to new places.