Court Bars Notice to Workers on Right to Unionize

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A federal appeals court on struck down a National Labor Relations Board rule requiring most private sector employers to post a notice informing employees of their right to unionize, reports the New York Times. Ever since the labor board proposed the rule in December 2010, business groups have asserted that the move exceeded the board’s authority and was an improper imposition on nearly six million employers, most of them small businesses.

In its decision, the United States Court of Appeals for the District of Columbia Circuit concluded that the N.L.R.B.’s rule violated a federal law that bars the board from punishing an employer for expressing its views so long as those statements do not constitute threats of retaliation or force.

The labor board had originally said that an employer’s failure to post the notice would be considered an unfair labor practice, resulting in penalties, but the circuit court said the board would be acting illegally to punish an employer for expressing a statement or in this case, for failing to post a statement under orders by the labor board.

The labor board’s rule told employers to post a notice, informing workers of their right to form or join a union, to strike, to bargain collectively and to act together to improve working conditions.

The federal circuit court issued an injunction in April 2012, suspending the labor board’s rule, after two lower courts differed on whether the board had overstepped its powers.

The circuit court cited several Supreme Court rulings to reach its decision that employers have a right to disseminate views as well as a right not to disseminate views. The court relied on First Amendment rulings that prohibit the government from telling people what they must say, like telling schoolchildren they must recite the Pledge of Allegiance.

Many businesses asserted that the labor board’s proposed poster was one-sided and pro-union, although the board said the poster was neutral.

In holding that the labor board could not punish employers for failing to post the notice, the court decided to vacate the rule altogether, saying that the labor board would not have wanted to propose a merely voluntary rule that it could not enforce.

The labor board said it was reviewing the ruling and would “make a decision on further proceedings at the appropriate time.” It noted that the Fourth Circuit Court of Appeals was also reviewing the legality of the poster rule. Read More.