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Labor Board Union Poster Rule Rejected by Appeals Court

A U.S. labor board rule requiring most companies to install workplace posters detailing union rights was thrown out by an appeals court that said the regulation violates employers’ free speech rights.

The National Labor Relations Board’s demand that businesses provide information about union organizing, bargaining and protests was so-called compelled speech because it didn’t include opposing information such as how to decertify a union or avoid paying dues, the U.S. Court of Appeals in Washington ruled today.

The NLRB rule treats failure to post the required notice “as evidence of anti-union animus in cases involving, for example, unlawfully motivated firings or refusals to hire,” U.S. Circuit Judge A. Raymond Randolph said, writing for the three judge panel.

The ruling is a victory for business groups that claimed the regulation would have required even employers without a union workforce to post the notices. Employer groups, including the National Association of Manufacturers and the National Right to Work Legal Defense and Education Foundation, argued it amounted to an invitation to join a union.

Public Comments

The NLRB said it received more than 6,500 public comments and in its review dropped a requirement to have employers send the notice by e-mail, voice-mail or text messaging if they usually communicate with their employees in that manner.

The NLRB said in a statement it’s reviewing the opinion and will “make a decision on further proceedings at the appropriate time.” The rule is under review by the U.S. Court of Appeals in Richmond, Virginia, according to the statement.

AFL-CIO President Richard Trunka said “the Republican judges of the D.C. Circuit continue to wreak havoc on workers’ rights.

“ In today’s workplace, employers are required to display posters explaining wage and hour rights, health and safety and discrimination laws, even emergency escape routes,” Trumka said in a statement. “The D.C. Circuit ruling suggests that courts should strike down hundreds of notice requirements.”

The rule, which was scheduled to take effect April 30, 2012, had been on hold while the appeals court considered its legality.

Revenue Levels

The measure applied to businesses depending on revenue levels, such as retailers that sell $500,000 annually or law firms that have at least $250,000 each year in revenue. Business groups said about 6 million companies would be affected.

“The court acknowledged that ‘the choice to speak includes within it the choice of what not to say,’ and that the NLRB overstepped its authority by compelling small-business owners to post a pro-union notice,” Karen Harned, a lawyer at the National Federation of Independent Business, said in an e-mailed statement.

The appeals court ruling reversed a March 2, 2012, decision by U.S. District Judge Amy Berman Jackson in which she left the poster requirement standing while striking down the NLRB’s ability to punish any failure to comply.

The poster includes information on the right to join a union, bargain and picket as well as how to take action to improve working conditions. It explains that it’s illegal for bosses to prohibit wearing union gear in the workplace or spy on union activities.

The court didn’t address arguments that the requirement must be invalidated because enforcement would be handled by board members who were installed by President Barack Obama without Senate approval.

The NLRB has asked the U.S. Supreme Court to reverse a different appeals court panel’s ruling that Obama’s appointments to the labor board in 2012 were unconstitutional.

The case is National Association of Manufacturers v. National Labor Relations Board, 12-05068, U.S. Court of Appeals for the District of Columbia (Washington).

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