Death of the “poster rule”
Back in 2011, the National Labor Relations Board issued a rule that required every business covered by the National Labor Relations Act to prominently post a notice informing workers of their rights to form a union and engage in collective bargaining, and also their right to refuse entreaties from union organizers. The rule even specified the size of the notice: 11 by 17 inches. About six million businesses, many of them small business operations, were covered by the edict. Supporters claimed it was necessary because workers, particularly young people and new immigrants, were unaware of their collective bargaining rights.
This came to be known as the “Poster Rule,” and was a topic of much controversy, eventually leading to two legal challenges. The first of those challenges said the rule violated the First Amendment rights of business owners. It’s true that workplace regulations require them to display things like safety notices and Workers Comp info, but the plaintiffs charged the Poster Rule would oblige them to post a political argument they disagreed with. It’s true that the posters would also explain the right to refuse union organization efforts, but the message was said to be inescapably slanted in favor of unionization. The purpose of the poster, after all, was to make employees aware that they could change the status of their existing non-union workplace. It’s tough to imagine how any additional text about the right to say “no” to organizers could perfectly balance this message. And in any event, no matter which way the mandatory message was slanted, it would still be an infringement on the free speech rights of business owners required to display it.
The D.C. Circuit Court accepted this argument and struck down the Poster Rule last May, asserting in its decision that “the right to disseminate another’s speech necessarily includes the right to decide not to disseminate it.” As the principle was expressed in a case cited by the Supreme Court in reaching similar conclusions, the right of free speech “includes both the right to speak freely, and the right to refrain from speaking at all.”
The D.C. court made an interesting point about the “balance” that would ostensibly be achieved by requiring the posters to include verbiage about the employee’s right to refuse organization efforts: “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, inter alia, 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.”
In other words, the posters would not – and realistically could not – include all the permutations of organized labor law. The NLRB claimed editorial discretion to make the posters readable. They weren’t exactly “The Hunger Games” in their current incarnation, and if they included even more dusty legal text, they’d either become enormous, or be printed in such tiny type that no one would bother reading them. The very existence of these posters was a laughable extension of our absurdly legalistic, advisories-on-everything culture of presumed ignorance and apathy, in which we are fortunate that metal forks aren’t stamped with a mandatory warning that tells the user not to thrust them into electric sockets.
It’s reasonable for the NLRB to claim editorial discretion over its posters… but it then becomes unreasonable to require employers to display them, treating them as sweat-shop barons if they fail to comply. In the Information Age, it grows increasingly silly to behave as if vital information is somehow hidden if citizens are not required to print it out and hang it on their walls, especially when our titanic government is very interested in pushing the information in question.
The other challenge to the Poster Rule was perhaps a bit less obvious – most people would consider it a matter of common sense that it was a danger to free speech rights – but potentially a bigger stumbling block to the NLRB’s agenda, because the 4th Circuit held last summer that the Board didn’t have the right to issue such a regulation at all. This directly contradicted the D.C. Circuit Court’s ruling, which did grant the authority to promulgate the rule (after diverting briefly to chastise President Obama for making illegal recess appointments to the Board, obliging the Court to scrutinize the calendar and determine that the Poster Rule was conceived before that happened.)
But plaintiffs before the 4th Circuit – specifically, the Chamber of Commerce – made a simple but devastating case that the National Labor Relations Act simply does not grant the NLRB authority to do anything other than investigate alleged workplace violations and monitor union elections. ”Looking to the plain language of the NLRA, its structure, its legislative history, and the notice provisions in other statutes, the court concluded that the Act does not provide the Board with the power to enact such a rule,” the 4th Circuit wrote. ”Indeed, there is no function or responsibility of the Board not predicated upon the filing of an unfair labor practice charge or a representation petition.”
That’s really one of the central conflicts of our era, isn’t it? It sounds almost quaint to assert that a government agency simply does not have the authority to do something its constituents desire. (The NLRB is run by, and for, labor unions these days.) Standard procedure in the Obama era involves disposing of such legal niceties, doing whatever the moment demands, and challenging the public to vote its rulers out of office if they don’t like it. The notion that a powerful agency can only do what its enabling legislation specifically authorized it to do, rather than everything that seems relevant to its bureaucratic mission, is really old-fashioned.
Watchdog.org reports that the NLRB has thrown in the towel on defending the Poster Rule, issuing a statement on Monday that it would not challenge either of the court rulings that defeated it, and would file no appeal to the Supreme Court. ”The workplace poster is still available on the NLRB website, where it can be voluntarily displayed at the discretion of individual employers,” notes the report. A similar poster requirement issued by the Labor Department, covering federal contractors and subcontractors, remains under challenge in the U.S. District Court for the District of Columbia… a challenge that might well be influenced by the death of the NLRB’s poster rule.