Thursday, June 27, 2013

Morris on Employee-Rights Posters and Employers’ Free Speech

CharliemorrisWe are thrilled to welcome as a guest commentator to the Workplace Prof Blog our distinguished colleague, Charlie Morris.  As many of you know, Charlie is professor of law emeritus at the Dedman School of Law at SMU. He is an internationally renowned labor law scholar and authority on the NLRA and well-known for his take on members-only bargaining units.  He wrote about minority-bargaining in 2005 in The Blue Eagle At Work: Reclaiming Democratic Rights In The American WorkplaceMore recently, Charlie has started his own blog, Charles J. Morris on Labor Relations, featuring his thoughts on various labor law topics.

Here, Charlie shares with us his thoughts on the recent DC Circuit decision concerning employee-rights posters and employer's free speech.  Here is a taste of his commentary (which you can download in full at this link here):

A recent decision by a panel of  judges of the District of Columbia Circuit Court of Appeals in National Association of Manufacturers (NAM) v. NLRB, in an Opinion by Judge A. Raymond Randolph, holds that a rule issued by the National Labor Relations Board (NLRB or Board) on August 30, 2011, that requires employers to display a poster that advises employees of their rights under the National Labor Relations Act (NLRA or Act) is unconstitutional because it violates the First Amendment free-speech rights of employers.  The New York Times’ characterization of that decision as “outrageous” expresses the natural reaction to a ruling that uses the cover of free speech to suppress free speech.  Judge Randolph’s decision raises the critical question of whether by final judicial determination this notice-posting rule will be deemed a violation of the Constitution, for if so, most governmentally required notice postings (both federal and state) that are commonly displayed in millions of American workplaces will no longer be mandatory.  Based on established case law, the final answer to that question should be that the rule does not violate the First Amendment; thus the existing familiar notice- postings will safely continue. 

This is an excellent piece for both those who are unfamiliar with this area of labor law, as well as those who know much about this decision and are interested in a well-thought out and comprehensive perspective. We look forward to Charlie sharing more of his posts with us as a guest commentator in the days and weeks to come.


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Oh my, wouldn't you know it: an author of a title I somehow missed in the first section of my bibliography. I will add Professor Morris' book. Thanks!

Posted by: Patrick S. O'Donnell | Jun 27, 2013 4:16:38 PM

Well, I approve of the background he chose for his blog.

Posted by: James Young | Jun 27, 2013 7:03:57 PM

Having read Prof. Morris' paper, I respectfully submit that its analysis does not survive the Court's recent decision in Agency for Int'l Development v. Alliance for Open Society Int'l, Inc. (6/20/2013)("AID"), which I understand may have been issued after Prof. Morris wrote his paper. It is not an employment case, but anyone interested in this topic should review that decision. It addresses the issue of compelled speech, which is at the heart of the D.C. Circuit's decision in NAM. The six-justice majority opinion in AID offers an anlaysis that suggests that Judge Randolph got it right in NAM. As the AID majority held, it is one thing for Congress to mandate action (in that case, bar the use of funds to promote prositution) and quite another to mandate the expression of a belief (requiring the adotpion of a policy opposing prostitution). Similarly, it is one thig for the Board to protect concerted activity, and it is quite another to force employers to adopt (in Prof. Morris' words) "the voice of the NLRB." With all respect, NAM is correctly decided -- and if that means other posting requirements are unconstitutional, well, let those chips fall where they may.

Posted by: Tim O'Connell | Jun 28, 2013 9:27:04 AM

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