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Employers can't be forced to display pro-union posters, court rules

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Mr. Trumka added: “This is absurd: when workers know their rights, the laws work as intended.”

Though the rule was enacted, it never took effect, because lawsuits against it resulted in an injunction against the posters.

Critics see the measure as part of an aggressive effort within the Obama administration to use the rulemaking authority of federal agencies to bypass congressional inaction or opposition in key areas, including immigration and health care.

The judges said the poster rule violated a section of the National Labor Relations Act written to uphold the free speech rights of employers to engage in an open, noncoercive exchange of ideas concerning labor relations and workplace issues.

That section of the statute says in part: “The expressing of any views … whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of the [Act], if such expression contains no threat of reprisal or force or promise of benefit.”

Senior Judge A. Raymond Randolph said in the main opinion that the provision bars the labor relations board from finding noncoercive speech by an employer to be an unfair labor practice.

The First Amendment protects not just the right to speak, but also the right not to speak, the judge said. The government may not dictate a message and then punish those who refuse to deliver it, he said.

Government lawyers had defended the notice requirement, saying the poster featured the speech of the labor relations board, not of any employer.

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