NLRB Employee-Rights Posters and Employers’ Free Speech
by
Charles J. Morris
Professor
Emertus, Dedman School of Law
Southern Methodist University
Southern Methodist University
© Charles J.
Morris 2013
A recent decision by a panel of judges of the District of Columbia Circuit Court
of Appeals in National Association of
Manufacturers (NAM) v. NLRB,[1]
in an Opinion by Judge A. Raymond Randolph, holds that a rule issued by the National Labor Relations Board (NLRB
or Board) on August 30, 2011, that requires employers to display a poster that
advises employees of their rights under the National Labor Relations Act (NLRA or Act)[2] is
unconstitutional because it violates the First Amendment free-speech rights of employers.
The New York Times’ characterization of
that decision as “outrageous”[3]
expresses the natural reaction to a ruling that uses the cover of free speech
to suppress free speech. Judge
Randolph’s decision raises the critical question of whether by final judicial
determination this notice-posting rule will be deemed a violation of the
Constitution, for if so, most governmentally required notice postings (both
federal and state) that are commonly displayed
in millions of American workplaces will no longer be mandatory. Based on established case law, the final answer
to that question should be that the rule does not violate the First Amendment;
thus the existing familiar notice- postings will safely continue. However, before examining that established law,
a background item is worthy of note.
Although
the employer plaintiffs in this D.C. Appeals case, the NAM and the National
Right to Work Legal Defense and Education Foundation, contend that the Board
lacks statutory jurisdiction to issue a rule that requires employers to display posters that inform their employees about
their rights under the Act, nlrb records
reveal that this contention is hypocritical and inconsistent with the position
they and other employer organizations, including the U.S. Chamber of Commerce,
took in 1992 and 1993,[4] which
was that Section 6 of the Act[5]
provided the Board with ample jurisdiction to require unions to inform union-represented employees by mail or workplace postings
about their rights “to join or refrain from joining a union and the financial
obligation incident to each status.”[6] These same organizations have now reversed that
position, arguing that Section 6 does not grant the Board statutory
jurisdiction to issue that type of rule―the only
significant difference now being that the current rule requires employers rather than unions to post the notices.
Without
claiming any prescience as to the ultimate applicability of statutory
jurisdiction in this case―for as a result of the
Supreme Court’s recent decision in City
of Arlington v. F.C.C.[7] it
is now virtually certain that Section 6 grants the Board unassailable statutory
jurisdiction to issue the rule in question―Judge
Randolph chose not to base his decision on an alleged absence of Section
6 statutory jurisdiction;[8] instead,
he predicated that decision on the novel premise that the Board lacks
jurisdiction to issue the rule because it violates the First Amendment of the
U.S. Constitution. He reaches this surprising
conclusion by way of a unique free-speech construction of Section 8(c) of the
Act, a provision that reads as follows:
The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or visual form,
shall not constitute or be evidence of an unfair labor practice under any of
the provisions of this [Act], if such expression contains no threat of reprisal
or force or promise of benefit.
Judge Randolph does not question the even-handedness
and fairness of the poster’s portrayal of the statutory rights. Indeed his Opinion
acknowledges that
The poster informs employees of their right to form, join, or
assist a union; to bargain collectively through representatives of their
choosing; to discuss wages, benefits, and other terms and conditions of
employment with fellow employees or a union; to take action to improve working
conditions; to strike and picket; or to choose not to engage in any of these activities.[9]
Yet, notwithstanding the neutrality of that message, he finds
that because the employer plaintiffs “object to the message the government has
ordered them to publish on their premises”[10] the
rule violates the First Amendment and Section 8(c).
He asserts that “[a]lthough § 8(c)
precludes the Board from finding noncoercive speech to be an unfair labor
practice, or evidence of an unfair labor practice, the Board’s rule does both”[11] because,
notwithstanding that “[i]t is obviously correct that the poster contains the
Board’s speech,”[12]
employers are required to “disseminate” that poster “upon pain of being held to
have committed an unfair labor practice”[13] for the
“language of § 8(c) covers
[the] ‘dissemination’ of ‘any views,
arguments, or opinions.’”[14] He therefore declares that inasmuch as “[t]he
right to disseminate another’s speech necessarily includes the right to decide
not to disseminate it,”[15] and
because refusal to post the notice, i.e., the Board’s speech, constitutes an
unfair labor practice, that right to refuse is protected by the First Amendment.[16]
Judge Randolph arrives at that unqualified conclusion
without pausing to confront the established standards spelled out in United States v. O’Brien,’[17]
the leading case applicable to governmental regulations that might encroach
upon First Amendment free speech, where the Supreme Court emphasized that such
a regulation
is sufficiently justified if it is within the constitutional
power of the Government; if it furthers an important or substantial
governmental interest; if the governmental interest is unrelated to the suppression
of free expression; and if the incidental restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest.[18]
Instead of examining the Board’s rule in relation to
the O’Brien factors, Judge Randolph relies
on two wholly inapplicable groups of cases, including three pre-O’Brien cases. First,
where the governmental interest was deemed insufficient to override
constitutional free speech, Wooley v.
Maynard[19] (a New Hampshire law that required
motorists to display the state motto “Live Free or Die” on their license plates),
and West Virginia State Board of
Education v. Barnette[20]
(a state law that required school children to recite the Pledge of Allegiance
and salute the flag). Second, where the means chosen to
accomplish a legitimate governmental objective was deemed unconstitutional
because it was unduly burdensome and not narrowly tailored, Riley v. National Federation of the Blind”[21]
(a North Carolina law that was intended to prevent fraud by donation-solicitors
who were required to disclose to potential donors the percentage of donated
revenue retained by the soliciting charity, i.e., the unwanted speech; it also purported
to define by a complex formula the reasonable fee that fundraisers could
charge, and it required fundraisers to obtain licenses before soliciting).
If Judge Randolph had relied instead on the
straight-forward tests in O’Brien and
their application in its progeny cases,[22]
which are specifically pertinent to governmental regulations that reasonably
restrict some element of free speech in order to rationally serve an important
public interest, he would surely have recognized that all of the O’Brien requirements are fully satisfied
by the Board’s notice-posting rule, which therefore does not violate the First
Amendment.
Turner
Broadcasting System, Inc. v. F.C.C.[23]
is an O’Brien progeny case directly
in point. The issue there was whether
provisions in the Cable Television Consumer Protection and Competition Act of
1992, which requires cable television companies to dedicate some of their channels
to broadcasting programs of local television stations (known as must-carry provisions) violated the First
Amendment rights of cable television companies who were thus required―like the employers under
the Board’s notice-posting rule―to publish messages against their will. The Supreme Court concluded that because “the
burden imposed by must-carry is congruent to the benefits it affords [and] is narrowly
tailored to preserve a multiplicity of broadcast stations for...households
without cable,”[24]
which was an acceptable Congressional objective, the “must-carry” provisions
did not violate of the First Amendment. As
further demonstration that “must-carry” met the O’Brien standards, the Court highlighted some of the benchmarks that
it had articulated in two other progeny cases.[25] In Ward
v. Rock Against Racism[26]
it stressed that “’the essence of narrow tailoring” is “focusing on the evils
the [Government] seeks to eliminate...[without] significantly restricting a
substantial quantity of speech that does not create the same evils.” And in Clark
v. Community for Creative Non-Violence[27] it noted that “[n]one of [the regulation’s] provisions appear unrelated to the
ends that it was designed to serve.” By
these standards, the NLRB’s notice-posting rule clearly focuses on the evils of
employees’ widespread lack of knowledge about their rights under the NLRA and
how they can be enforced, which the Board had established without any contradiction.[28]
As the district court held, the NLRB’s
dissemination of information about employee rights is well
within its bailiwick. The Board is not
attempting to regulate entities or individuals other than those that Congress
expressly authorized it to regulate [and] the stated purpose of the rule is directly
related to the policy behind the NLRA. [29]
And, like the regulation approved in Community for Creative Non-Violence, the Board’s rule is closely
related to the “ends it was designed to serve,” i.e., to inform employees of
their statutory rights, and it does not significantly restrict anyone’s
speech. The poster is unmistakably the
voice of the NLRB, a governmental agency and not the voice of the employer, who
remains free to post anything anywhere in the workplace and to tell anything to
the employees, singly or in captive-audience groups, provided only that such
expressions contain no “threat of reprisal or force or promise of benefit.”
Established constitutional law thus confirms that the
Board’s notice-posting rule does not violate the employers’ First Amendment
rights for―in the
words of the Supreme Court in another O’Brien
progeny case― this
rule was “designed to serve a
substantial governmental interest and allows for reasonable alternative avenues
of communication.”[30] Accordingly, Judge Randolph’s contrary thesis
cannot survive.
[2]
76 Fed. Reg. 54,006.
[3]
NYT editorial, May 10, 2013.
[4]
See 29 C.F.R. Part 103.40(e)&(f),
Union Dues Regulation
(9/22/1992). For full documentation of
these positions, see district court’s
opinion in National Ass’n of Mfgrs v. NLRB, 846 Supp.2d 34, 48 n.9 (2012).
[5]
§ 6 (29 U.S.C. § 156) : “The Board shall have
authority from time to time to make, amend, and rescind, in the manner
prescribed by the Administrative Procedure Act, such rules and regulations as
may be necessary to carry out the provisions of this Act.”
[6]
29 C.F.R. § 102.124 & 5 U.S.C. (e). That one-sided proposal prompted the
author of this article to file in 1993 an “interested person’s” petition proposing that the union-notice proposed
rule be replaced by a balanced rule requiring posting of a general notice that
would advise employees of all their basic rights under the NLRB. That petition remained inactive until 2010
when the Board responded by considering and issuing the notice-posting rule in
2011 that the D.C. Circuit Court of Appeals panel held unconstitutional.
[7]
Nos. 11-1545 and 1547 (U.S. S.Ct, May 20, 2013).
[8]
However, the other members of the panel, Judges Karen LeCraft Henderson and
Janice Rogers Brown, although they concurred with Judge Randolph’s Opinion,
added that they would also find that the “NLRA―and Section 6 in particular” does not authorize
issuance of the rule.
[9]
Supra note 1, slip op., at 4.
[10]
Id., at 19.
[11]
Id., at 14.
[12]
Id., at 15.
[13]
Id., at 17.
[14]
Id., at 16. Emphasis
added.
[15]
Id.
[16]
Citing Pac. Gas & Electric Co. v. Pub. Utils. Comm’n, 475 U.S. 1, 11
(1986) (“all speech inherently
involves choices of what to say and what to leave unsaid.” Emphasis in original.)
[17]
391 U.S. 367 (1968). See also, e.g. the following of its
progeny cases:
[18]
Id., at 377. Emphasis
in original.
[19]430
U.S. 705 (1977).
[20]
319 U.S. 644 (1943).
[21]
Riley v. National Federation of the Blind, 487 U.S. 781, 798 (1988).
[22]
E.g., Turner Broadcasting System, Inc. v.
F.C.C., 520 U.S. 180 (1997); Ward v.
Rock Against Racism, 491 U.S. 781 (1989); Renton v. Playtime Theatres, 475 U.S. 41 (1986); United States v.
Albertini, 472 U.S. 675 1985); Clark v. Community for Creative
Non-Violence, 468 U.S. 288 (1984); Members of City Council v. Taxpayers for
Vincent, 466 U.S. 789 (1984).
[23]
Note 26, supra.
[24]
Id., at 215-216.
[25]
Id.
[26]
Note 26, supra at 799 n. 7.
[27]
Note 26, supra at 297.
[28]
See district court’s opinion in National
Ass’n of Mfgrs v. NLRB, 846 F.Supp.2d 34, 51 (2012).
[29]
Id., at 45. § 1 of the Act declares the policy of the United States to be
the encouragement of collective bargaining and the protection of workers exercising
full freedom of association through representatives of their own choosing for
the purpose of negotiating the terms and conditions of their employment or
other mutual aid or protection.
[30]
Renton v. Playtime Theatres, supra note at 50).
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