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In an important decision today, the United States Court of Appeals for the D.C. Circuit struck down a controversial rule requiring employers to post information respecting their employees' right to unionize. The Court sidestepped a key question of the controversy, and the controversies engulfing the Obama Administration's recess appointments to the National Labor Relations Board in general, by not making a decision about whether the Board had the power to mandate the posters.
Instead, the Court of Appeals noted that the National Labor Relations Act ensures an employer's right to speech so long as that speech does not contain threats. Consequently, the Court reasoned that the Act also gives employers the right to remain silent. Therefore, the Board's decision to mandate the posters was tantamount to mandating speech, which violated employers' right to remain silent.
This is the first appeals court to issue a ruling on the rule. Another appeal is presently pending before the Fourth Circuit Court of Appeals. The text of the D.C. Circuit's opinion in National Association of Manufacturers et al. v. National Labor Relations Board et al. can be found by clicking this link (PDF).
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