Constitution Check: Who has First Amendment rights in the workplace?

National Constitution Center

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Lyle Denniston looks at a recent Court of Appeals ruling that bars the National Labor Relations Board from forcing employers to publicly list employees’ union rights in the form of a poster.

The statements at issue:

“The poster rule is a prime example of a government agency that seeks to fundamentally change the way employers and employees communicate. The ultimate result of the NLRB’s intrusion would be to create hostile work environments where none exist.”

– Jay Timmons, president and CEO of the National Association of Manufacturers, in a statement quoted in The New York Times May 8 in response to a federal appeals court decision striking down a requirement by the National Labor Relations Board that some 6 million companies display in their workplaces a poster telling workers of their rights to unionize.

“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. The circuit court’s rulings suggests that courts should strike down hundreds of notice requirements, not only those that inform workers about their rights and warn them of hazards, but also those on cigarette packages, in home mortgages, and many other areas.”

– Richard Trumka, president of the AFL-CIO labor union federation, in a statement quoted in the same The New York Times article May 8.

We checked the Constitution, and …

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For generations, the First Amendment’s Free Speech Clause has been a battleground between companies and labor unions over how they communicate with workers about the issue of joining a union to bargain over workplace benefits. Recently, in the background of that struggle has been the reality that labor unions are continually losing popularity. In January, government figures showed that the rate of union membership in the U.S. was at its lowest level since 1916, and the decline is especially severe in private sector workplaces.

That trend, in fact, was a key factor in the National Labor Relations Board’s decision in 2011 to require employers whose dealings with employees are governed by the federal labor law that dates back to 1935 to put up an 11-by-17-inch poster telling workers about their rights. Declining union membership, the board found, was due in part to the fact that workers did not know their rights, and so should be told about them and told how to enforce those rights.

The board’s poster rule told workers that they had a right to form, join, or assist a labor union, a right to bargain collectively through a union, a right to discuss workplace benefits and conditions with other workers and with a union, a right to take action to improve working conditions, a right to strike and picket, and a right to choose not to engage in any of those activities.

The fight over that rule is a modern-day echo of past disputes arising out of NLRB attempts to police the workplace, when management associations complained in the courts and to Congress that the board had “pushed the labor relations balance too far in favor of unions,” as the Supreme Court described those complaints in a ruling five years ago.

That decision, in fact, noted that the Supreme Court as long ago as 1941 had recognized “the First Amendment right of employers to engage in non-coercive speech about unionization.” In other words, they were free to talk to their employees in ways that sought to discourage them from joining unions, so long as that was done without threats of reprisal or coercion. Congress, in fact, wrote that guarantee of employer free speech into labor law in 1947, in what is called the Taft-Hartley Act.

The Court of Appeals for the District of Columbia Circuit, in its ruling this month striking down the NLRB’s poster requirement, relied on that provision, but also gave what appeared to be an expanded interpretation of the First Amendment as it applies to employers’ speech rights.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

The appeals court turned to Supreme Court rulings outside the workplace context: one that barred  a state from requiring motorists to put a state-approved slogan on their license plates, and another forbidding a school district from requiring students to salute the American flag even if that violated their religious beliefs.

The NLRB, the court said, was actually trying to force employers to deliver the NLRB’s own message as if it were their own–a form of compelled speech that the First Amendment forbids. The court noted that the challenging employer groups had argued that the poster was not neutral at all, but rather was strongly slanted in favor of unionism:

“Like the freedom of speech guaranteed in the First Amendment, [federal labor law] necessarily protects–as against the board–the right of employers (and unions) not to speak.”

Finding that nothing of the enforcement mechanisms the board had adopted to compel companies to put up the poster were allowed by labor law, the appeals court struck down the rule.

This dispute over the poster rule, of course, comes against a broader background of increasing management objection to what the National Association of Manufacturers has called the “rogue” behavior of the NLRB. The resistance to the board has spread to the Senate, with filibustering of appointees to the board, and by objections to President Obama’s appointments to the board to serve temporarily when the Senate was not in session to review those appointments.

The president’s lawyers have now taken to the Supreme Court the constitutional fight over his recess appointments to the board, and the court is likely to rule on that at its next term starting in October.

Whether the poster rule fight also goes on to the Supreme Court has not yet been decided. The board has said it is considering what to do next.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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