Warning labels and notices are a common feature of American life. Federal law requires most groceries to display detailed information about their ingredients, calorie content, and other nutritional facts. Federal fuel economy labels inform car buyers how quickly their new vehicle will burn through gas. Surgeon general warnings inform smokers of the dangers presented by tobacco. Employers who employ workers subject to federal minimum wage law must display posters informing these workers of their rights.
And yet, under a decision handed down today by three Republican judges, all of these information labels and more are now in jeopardy.
The decision by a panel of the conservative United States Court of Appeals for the District of Columbia Circuit strikes down federal regulations requiring employers to display posters informing workers of their right to organize and other rights under federal labor law. Although the opinion meanders quite a bit, its analysis begins by claiming this result is required by a federal statute protecting employers’ rights to express their views to their employees. That statute provides that “[t]he expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice . . . if such expression contains no threat of reprisal or force or promise of benefit.” Although this language says nothing about employers also having the right not to post information they would prefer to keep their workers ignorant of, the three Republican judges fabricate such a right through the power of a rhetorical question:
Suppose that § 8(c) prevents the Board from charging an employer with an unfair labor practice for posting a notice advising employees of their right not to join a union. Of course § 8(c) clearly does this. How then can it be an unfair labor practice for an employer to refuse to post a government notice informing employees of their right to unionize (or to refuse to)? Like the freedom of speech guaranteed in the First Amendment, § 8(c) necessarily protects—as against the Board—the right of employers (and unions) not to speak. This is why, for example, a company official giving a noncoercive speech to employees describing the disadvantages of unionization does not commit an unfair labor practice if, in his speech, the official neglects to mention the advantages of having a union.
Of course, the easy answer to this rhetorical question is that it can be illegal to punish employers who express their view of unions but not illegal to require employers to inform workers of their rights because that’s what the law says. Typically, judges begin their legal analysis with the language of the law. These Republican judges chose a different path.
Perhaps sensing that their reading of federal law stands on shaky ground, the judges also weave a particularly aggressive reading of the First Amendment into their opinion. Under the Supreme Court’s decision in Zauderer v. Office of Disciplinary Counsel, commercial actors can be required to provide “purely factual and uncontroversial information” to the people they transact with. This is why cereal boxes can be required to display accurate information about the nutritional value of Rice Chex or Froot Loops, but businesses also cannot be forced to endorse a particular political candidate or to advise their workers to join a union. Because the new posters do nothing more than inform workers about uncontroversial facts involving their rights in the workplace, they should be no more invalid than labeling on a cereal box.
Although union-related speech is sometimes treated differently than speech involving sales of goods, the court does not question its applicability to labor decisions generally. Instead, the judges read Zauderer very narrowly — so narrowly that it does not apply unless the corporation required to display information appears poised to deceive their workers or consumers. Because no one “has even suggested that the posting rule was needed because employers are misleading employees about their rights under the National Labor Relations Act,” the court concludes that Zauderer does not apply. If taken seriously, this reasoning would threaten nearly all warning or informational labels required by law. There’s little evidence, for example, that General Mills is actively deceiving consumers about the number of calories in a serving of Count Chocula. Nor are Chevy dealers only required to post fuel efficiency labels if they lie to their customers about how quickly a Suburban burns through gasoline.
If nothing else, today’s decision should be a wake up call to unions and other advocates for workers that everything they care about is threatened so long as vacancies remain on powerful, GOP-dominated courts like the DC Circuit. Today’s decision bears the same resemblance to the law that Westeros bears to New Hampshire. It writes words that simply do not exist into a federal statute, and then fabricates a constitutional right to keep workers and consumers ignorant. The only way to prevent future decisions like this one is to confirm more judges who will do a better job of adhering to the law.