An employer’s right not to speak

Massing the heavy legal artillery of 1st Amendment principles, a federal appeals court has ruled that the federal government can’t order businesses to post signs informing employees that they have a right to join a union and to bargain for better wages. It’s a troubling ruling.

The case stems from a 2011 decision by the National Labor Relations Board that employers must “post notices to employees, in conspicuous places,” informing them of their rights under the National Labor Relations Act, and include the information in electronic mailings. The National Assn. of Manufacturers, which challenged the rule, and labor unions disagreed about whether the required posting was a neutral statement of federal labor law or slanted in favor of unions. (For example, the manufacturers noted that the poster failed to notify employees of their rights to decertify a union or to refuse to pay union dues in right-to-work states.)

But the fairness of the posting wasn’t the crucial issue in the court’s decision. In striking down the requirement, the U.S. Court of Appeals for the District of Columbia Circuit cited a provision in federal law saying that employers couldn’t be sanctioned for discouraging workers from forming unions. By logical extension, the court concluded, the NLRB also could not compel employers to tell workers about their rights to organize. The 1st Amendment, the court said, protects not just the employer’s right to speak but also its right not to speak.

The court’s reasoning is ingenious, but the logic of its approach to “compelled speech” could just as easily be used to prohibit signs in workplaces advising employees about everything from the existence of civil rights laws to the existence of the Occupational Safety and Health Administration. That would be an absurd result.

We hope the AFL-CIO is being alarmist when it warns that this ruling will “wreak havoc on workers’ rights.” But if the decision is upheld by the Supreme Court and does lead to employers concealing from workers their right to unionize, Congress should step in.

Employers should not be forced to disseminate union propaganda. But requiring them to post a neutral summary of workers’ rights under federal law is no more an unjust intrusion than compelling them to post notices about civil rights laws or workplace safety.