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Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations

that precedent in Nash-Finch Co., the
Supreme Court concluded that the
Board also had implied authority "to
enjoin state action where [the Board's]
federal power preempts the field." 404
U.S. at 144. Like these judicially
recognized powers, the notice-posting
requirement that is the subject of this
rulemaking has not been specifically
provided for by Congress. But the cited
cases demonstrate that Congress need
not expressly list a power for the Board
to legitimately exercise it. Indeed, the
notice-posting requirement is not even
an implied power of the Board in the
same sense as those previously
mentioned. Rather, it is the product of
the Board's exercise of express
rulemaking authority and inherent gap-
filling authority, both of which have
been delegated to the Board by
Congress.

2. The First Amendment and Section
8(c) of the NLRA

A handful of commenters argue that
the notice-posting requirement violates
the First Amendment to the
Constitution, Section 8(c) of the NLRA,
or both. For example, the Center on
National Labor Policy, Inc. maintains
that "compelling an employer to post its
property with a Notice that asserts the
statutory 'rights' and employer
obligations, runs counter to
constitutional views long protected by
the Supreme Court." The Center also
argues that the "proposed poster would
impede the employer's statutory right to
express itself on its own property."
Along these same lines, the National
Right to Work Legal Defense
Foundation, Inc. and others on whose
behalf it writes contend that "the
Board's proposal for forced speech
favoring unionization directly conflicts
with the First Amendment and
longstanding federal labor policy under
Section 8(c) that employers and unions
should be able to choose themselves
what to say about unionization." These
concerns were echoed by the National
Association of Wholesaler-Distributors.
In addition, two attorneys affiliated with
Pilchak Cohen & Tice, P.C., which they
describe as "a management-side labor
and employment law firm," argue that
the notice-posting requirement
"tramples upon employers' Free Speech
rights by regulating the content of
information that employers are required
to tell employees and by compelling
them to post the Notice containing pro-
union NLRA rights, when it is almost
assuredly not the employers' prerogative
to do so." The Independent Association
of Bakers goes further and characterizes
the regulation as an unconstitutional
"gag order" that "prohibits the

employer from telling the truth about
the impact a union might pose to his
business." The Board rejects these
arguments.

As an initial matter, requiring a notice
of employee rights to be posted does not
violate the First Amendment, which
protects the freedom of speech. Indeed,
this rule does not involve employer
speech at all. The government, not the
employer, will produce and supply
posters informing employees of their
legal rights. The government has sole
responsibility for the content of those
posters, and the poster explicitly states
that it is an "official Government
Notice"; nothing in the poster is
attributed to the employer. In fact, an
employer has no obligation beyond
putting up this government poster.
These same considerations were present
in Lake Butler Apparel Co. v. Secretary
of Labor, 519 F.2d 84, 89 (5th Cir. 1975),
where the Fifth Circuit rejected as
"nonsensical" an employer's First
Amendment challenge to the
Occupational Safety and Health Act
requirement that it post an "information
sign" similar to the one at issue here. As
in Lake Butler, an employer subject to
the Board's rule retains the right to
"differ with the wisdom of * * * this
requirement even to the point * * * of
challenging its validity. * * * But the
First Amendment which gives him the
full right to contest validity to the bitter
end cannot justify his refusal to post a
notice * * * thought to be essential."
Id.; see also Stockwell Mfg. Co. v. Usery,
536 F.2d 1306, 1309–10 (10th Cir. 1976)
(dicta) (rejecting a constitutional
challenge to a requirement that an
employer post a copy of an OSHA
citation).

But even if the Board's notice-posting
requirement is construed to compel
employer speech, the Supreme Court
has recognized that governments have
"substantial leeway in determining
appropriate information disclosure
requirements for business
corporations." Pac. Gas & Elec. Co. v.
Pub. Utils. Comm'n, 475 U.S. 1, 15 n.12
(1985). This discretion is particularly
wide when the government requires
information disclosures relevant to the
employment relationship. Thus, as the
D.C. Circuit has observed, "an
employer's right to silence is sharply
constrained in the labor context, and
leaves it subject to a variety of burdens
to post notices of rights and risks."
UAW-Labor Employment & Training
Corp. v. Chao, 325 F.3d 360, 365 (D.C.
Cir. 2003) (UAW v. Chao) (citing Lake
Butler, 519 F.2d at 89). Accordingly, the
Board's notice-posting requirement is

not susceptible to a First Amendment
challenge.44

The Board is equally satisfied that the
rule does not violate NLRA Section 8(c),
29 U.S.C. 158(c), which creates a safe
harbor for noncoercive speech in the
unfair labor practice area. Specifically,
Section 8(c) shields from unfair labor
practice liability "[t]he expressing of
any views, argument or opinion,"
provided that "such expression contains
no threat of reprisal or force or promise
of benefit." Id. (emphasis added). A
government poster containing accurate,
factual information about employees'
legal rights "merely states what the law
requires." Lake Butler, 519 F.2d at 89.
For that reason, "[t]he posting of the
notice does not by any stretch of the
imagination reflect one way or the other
on the views of the employer." Id.45

44 The decision of the intermediate state court in
Smith v. Fair Employment & Housing Commission,
30 Cal. Rptr. 2d 395 (Cal. Ct. App. 1994), rev'd on
other grounds, 913 P.2d 909 (Cal. 1996), lends no
support to arguments challenging these regulations
on First Amendment grounds. There, the California
Court of Appeal held that a landlord's right to
freedom of speech was "implicate[d]," id. at 401–
02, by a state fair housing agency's remedial order
requiring her to sign, post, and distribute notices
"setting out the provisions of [the fair housing
statute], the outcome of th[e] case, and the
statement that [she] practices equal housing
opportunity." 913 P.2d at 914. The Smith case is
not persuasive here because the notice at issue in
Smith would not merely have set forth the rights
of prospective buyers or renters but also would
have contained a signed statement from the
landlord which would have given the false
appearance that she agreed with the state's fair
housing "concepts and rules," despite her religious
beliefs to the contrary. 30 Cal. Rptr. 2d at 401. That
feature of the case has no parallel here. Here, by
contrast, employers are not required to sign the
informational notice, and as noted, nothing in the
poster is attributed to them. The Board further notes
that the Smith decision is not authoritative because
it was superseded by the California Supreme
Court's grant of review in that case. See 913 P.2d
at 916 n.*.

45 The Employers Association of New Jersey is
therefore off the mark when it argues that the
notice-posting requirement is preempted under the
principles of Lodge 76, International Ass'n of
Machinists & Aerospace Workers v. Wisconsin
Employment Relations Commission, 427 U.S. 132
(1976), as an attempt to regulate employer speech
"about unionization and collective bargaining." As
explained above, the employer's choice whether to
express its own views, arguments, or opinions is
wholly unaffected by a requirement to post a
government-provided notice summarizing what the
law requires. Indeed, consistent with both
Machinists and the policy of Section 8(c) "to
encourage free debate on issues dividing labor and
management,"'" Brown, 554 U.S. at 67 (quoting Linn
v. United Plant Guard Workers, Local 114, 383 U.S.
53, 62 (1966)), employers remain free under this
rule—as they have in the past—to express
noncoercive views regarding the exercise of these
rights as well as others. See, e.g., United Techs.
Corp., 274 N.L.R.B. 609, 609, 618–20, 624–26
(1985), enforced sub nom. NLRB v. Pratt & Whitney
Air Craft Div.v., United Techs. Corp., 789 F.2d 121
(2d Cir. 1986); Warrensburg Bd. & Paper Corp., 143
N.L.R.B. 398, 398–99 (1963), enforced, 340 F.2d 920
(2d Cir. 1965). For this reason, the Board finds it
unnecessary to adopt the proposal made by the

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