Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 7, 2003 Decided April 22, 2003
No. 02-5080
UAW–LABOR EMPLOYMENT AND TRAINING
CORPORATION, ET AL.,
APPELLEES
v.
ELAINE CHAO, SECRETARY OF LABOR, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 01cv00950)
Gregory G. Katsas, Deputy Assistant Attorney General,
U.S. Department of Justice, argued the cause for appellants.
With him on the briefs were Roscoe C. Howard, Jr., U.S.
Attorney, Mark B. Stern and Sharon Swingle, Attorneys,
U.S. Department of Justice.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Robert M. Weinberg argued the cause for appellees. With
him on the brief were Leon Dayan, Laurence Gold and
Melvin S. Schwarzwald. Robert Alexander entered an ap-
pearance.
W. James Young was on the brief for amicus curiae
National Right to Work Legal Defense & Education Founda-
tion, Inc. in support of appellants. With him on the brief was
Glenn M. Taubman.
Before: RANDOLPH and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
Dissenting opinion filed by Circuit Judge ROGERS.
WILLIAMS, Senior Circuit Judge: On February 17, 2001,
relying on his power under the Procurement Act, President
Bush issued Executive Order 13201, applying to all govern-
ment contracts involving more than $100,000. Executive
Order 13201, § 2, 66 Fed. Reg. 11,221, 11,221 (2001); 41
U.S.C. § 403(11) (2000). Under the order, each such contract
must include a provision requiring contractors to post notices
at all of their facilities informing employees of what are
commonly known as General Motors and Beck rights. See
Executive Order 13201, § 2, 66 Fed. Reg. at 11,221–22 (2001).
(In addition, contractors must require subcontractors to post
such a notice. Id.) These are rights under federal labor law
that protect employees from being forced to join a union or to
pay mandatory dues for costs unrelated to representational
activities. See Communications Workers v. Beck, 487 U.S.
735, 754–63 (1988); see also NLRB v. Gen. Motors Corp., 373
U.S. 734, 739–45 (1963). Besides informing employees of
their Beck rights, the notice is to tell them how they may
contact the National Labor Relations Board (‘‘NLRB’’) for
additional information. 66 Fed. Reg. at 11,222.
Plaintiffs brought suit against the Secretary of Labor and
the members of the Federal Acquisition Regulatory Council,
seeking declaratory and injunctive relief. The plaintiffs are
the UAW–Labor Employment and Training Corp. (‘‘UAW’’)
3
and three unions. UAW is a non-profit organization that
provides job training and placement services; it is a federal
contractor subject to the executive order. Accordingly it
clearly has standing, and we need not consider whether the
other plaintiffs do. See Mountain States Legal Found. v.
Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996).
The plaintiffs claimed that the order was preempted by the
National Labor Relations Act (‘‘NLRA’’), 29 U.S.C. § 151 et
seq., and also that, for want of an adequate nexus to the
government’s interest in efficient and economical contracting,
the President had no authority to issue it under the Federal
Property and Administrative Services Act of 1949 (the ‘‘Pro-
curement Act’’), 40 U.S.C. § 471 et seq. (now codified as
amended at 40 U.S.C. § 101 et seq.). The district court
found preemption, granted declaratory relief, and issued a
permanent injunction barring enforcement of the order. It
didn’t reach the Procurement Act question, but the plaintiffs
raise it here as an alternative ground for affirmance. Find-
ing both of plaintiffs’ theories to be flawed, we reverse and
remand for the district court to grant summary judgment in
favor of the government.
As the issues relate solely to summary judgment, we
review de novo. See Indep. Bankers Ass’n v. Farm Credit
Admin., 164 F.3d 661, 666 (D.C. Cir. 1999).
* * *
Federal labor law preemption falls into two categories,
Garmon and Machinists preemption, named after the cases
authoritatively articulating the theories—San Diego Bldg.
Trades Council v. Garmon, 359 U.S. 236 (1959), and Lodge
76, Int’l Ass’n of Machinists & Aerospace Workers v. Wiscon-
sin Employment Relations Comm’n, 427 U.S. 132 (1976).
Garmon preemption applies to regulation (usually by states)
of activities that are arguably ‘‘protected by § 7 of the
National Labor Relations Act, or constitute an unfair labor
practice under § 8.’’ Garmon, 359 U.S. at 244. Machinists
preemption applies when a state attempts to regulate an
activity that, although not necessarily protected or prohibited
4
by the NLRA, is an ‘‘economic weapon’’ the exercise of which
Congress intended to leave unrestricted. Machinists, 427
U.S. at 141. No claim is made that the posting of employees’
Beck rights represents an economic weapon—certainly not
one covered by Machinists preemption. Rather the plaintiffs
argue and the district court found that the executive order is
preempted under Garmon.
We first consider the government’s suggestion that our
preemption analysis should be less intrusive because the
order only imposes a contract condition, and firms can choose
to do business elsewhere. But at least in labor law, preemp-
tion applies to rules of the federal executive even when the
government is acting as a purchaser of goods, as long as the
government action is classified as regulatory rather than
proprietary. See Chamber of Commerce v. Reich, 74 F.3d
1322, 1334, 1336–37 (D.C. Cir. 1996); Bldg. & Constr. Trades
Dep’t v. Allbaugh, 295 F.3d 28, 34 (D.C. Cir. 2002). A clause
is likely to be found regulatory where it apparently ‘‘seeks to
set a broad policy.’’ Chamber of Commerce, 74 F.3d at 1337.
Here, the government doesn’t explicitly argue that its actions
are proprietary, but notes occasionally that it is only inserting
conditions into a contract that businesses voluntarily accept.
But as the order operates on government procurement across
the board, rather than being tailored to any particular set-
ting, the order is regulatory under prevailing principles. See
id. at 1336–37.
As we’ve said, Garmon preempts state (or here, federal
executive) regulation of ‘‘activities [that] are protected by § 7
of the National Labor Relations Act, or constitute an unfair
labor practice under § 8.’’ Garmon, 359 U.S. at 244. The
district court misconceived this doctrine. It said that under
Garmon ‘‘[t]he question is not whether the NLRA prohibits
employers from posting Beck/General Motors notices TTT but
whether the NLRA prohibits requiring employers to post the
notices.’’ District Court Opinion at 14. The NLRB had
ruled in Rochester Manufacturing Co., 323 N.L.R.B. 260
(1997), that it was not an unfair labor practice for an employ-
er to say nothing to employees about their Beck rights, id. at
262, and the district court read Rochester Manufacturing as
5
meeting its (misformulated) test. But the question under
Garmon is whether the ‘‘activities’’ are protected or prohibit-
ed. 359 U.S. at 244; see also Wisconsin Dep’t of Indus. v.
Gould Inc., 475 U.S. 282, 286 (1986) (‘‘States may not regulate
activity that the NLRA protects, prohibits, or arguably pro-
tects or prohibits.’’) (emphasis added). Under the district
court’s approach every activity deemed by the Board not to
be an unfair labor practice would be preempted, even though
the Board had said no more than that the NLRA didn’t speak
to the matter at all.
The dissent makes a similar error when it suggests that the
order is preempted because it conflicts with the ‘‘regulatory
scheme’’ the Board has established. See Dissent at 3. This
would be a sound analysis under ‘‘field’’ preemption, Hillsbor-
ough County v. Automated Medical Laboratories, Inc., 471
U.S. 707, 713 (1985), but Garmon works differently, operating
only as to activities arguably protected or prohibited, not to
ones simply left alone, even if left alone deliberately.
In the passage from Gould quoted above, the Court said (as
indeed it had in Garmon, 359 U.S. at 245) that Garmon
preemption applies even to activities that are only ‘‘arguably’’
protected or prohibited by the NLRA. Plaintiffs note that in
Rochester Manufacturing the General Counsel in fact argued
that not posting of Beck rights was an unfair labor practice.
Assuming that a ruling accepting the General Counsel’s posi-
tion would survive deferential judicial review, it must follow,
they say, that non-posting is ‘‘arguably’’ prohibited. (They
make no claim that posting is arguably an unfair practice.)
But International Longshoremen’s Association v. Davis, 476
U.S. 380, 394–98 (1986), indicates that the Board’s actual
decision controls; even if ‘‘there is an arguable case for pre-
emption,’’ the court ‘‘must defer to the Board, and only if the
Board decides that the conduct is not protected or prohibit-
ed,’’ is the regulation preemption-free. Id. at 397. See also
id. at 395 (saying that the party claiming pre-emption must
‘‘advance an interpretation of the Act that is not plainly
contrary to its language and that has not been ‘authoritatively
rejected’ by the courts or the Board’’) (emphasis added);
Hanna Mining Co. v. Dist. 2, Marine Eng’rs Beneficial
6
Ass’n, 382 U.S. 181, 190 (1965) (‘‘We hold that the Board’s
statement [that the engineers were supervisors and thus not
subject to the NLRA] does resolve the question with the
clarity necessary to avoid preemption.’’) (emphasis added).
Here the Board has decided that the activity is not prohibit-
ed. Of course a consequence may be that a reversal of
position by the Board (if permissible) will entail a reversal of
this outcome on preemption, but that is a consequence plainly
contemplated in the Court’s conclusion in Davis that a Board
decision can resolve what is ‘‘arguable’’ for Garmon purposes.
As a result, there is little basis for the dissent’s concern that
the Executive Order ‘‘would shift these decisions away from
the Board.’’ See Dissent at 2.
Garmon preempts not only regulation of activities arguably
prohibited by the NLRA, but also regulation of ones arguably
protected. Plaintiffs and our dissenting colleague argue that
precisely such an activity is in question here—the employer’s
right to speak, protected by § 8(c) of the Act:
The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed,
graphic, or visual form, shall not constitute or be evi-
dence of an unfair labor practice under any of the
provisions of this subchapter, if such expression contains
no threat of reprisal or force or promise of benefit.
29 U.S.C. § 158(c). We consider this speech argument only
in the context of preemption; plaintiff raises no free-standing
First Amendment claim.
Of course Garmon’s own expression of its scope limits its
preemption to activities that are arguably ‘‘protected by § 7
of the National Labor Relations Act, or constitute an unfair
labor practice under § 8.’’ 359 U.S. at 244. Fitting a Gar-
mon claim under the language of § 8(c) is awkward. That
provision is expressly aimed at a special problem—the risk
that a party’s advocacy (‘‘views, argument, or opinion’’) might
be burdened (considered ‘‘evidence of an unfair labor prac-
tice’’) even though it contained ‘‘no threat of reprisal or force
or promise of benefit.’’ 29 U.S.C. § 158(c). Thus § 8(c)
works to negate an unfair labor practice claim against an
7
employer posting a notice. But that gives it only a peripheral
link to the subject of Garmon. Even if we delete Garmon’s
references to specific sections, the activities described in
§ 8(c) do not ‘‘constitute an unfair labor practice,’’ except by
negation, and are not ‘‘protected by’’ the NLRA, except from
the NLRA itself.
Nonetheless, because the Supreme Court has rather ambig-
uously invoked § 8(c) in determining whether state libel laws
were subject to Garmon preemption (and finding that they
were in some circumstances), Linn v. United Plant Guard
Workers, 383 U.S. 53, 58 n.3, 62–63 (1966),1 we simply assume
arguendo that § 8(c) rights could be a basis for preemption.
Section 8(c) ‘‘implements the First Amendment’’ in the
labor relations area. NLRB v. Gissel Packing Co., 395 U.S.
575, 617 (1969). And the First Amendment includes not only
the right to speak, but also the right not to speak. See Riley
v. Nat’l Fed’n of the Blind, 487 U.S. 781, 796–97 (1988). But
this is as far as plaintiffs’ arguments can take them; even
assuming that the § 8(c) right includes the right not to speak,
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. See, e.g., Nat’l Elec. Mfrs.
Ass’n v. Sorrell, 272 F.3d 104, 113–16 (2d Cir. 2001) (hazard
labeling law); Lake Butler Apparel Co. v. Sec’y of Labor, 519
F.2d 84, 89 (5th Cir. 1975) (posting of OSHA notice). Thus
the dissent understandably offers no argument that employ-
ers’ silence as to Beck rights is in fact protected (or even
arguably protected). Its suggestion that the Board somehow
acknowledged or created such a right in Rochester, see
Dissent at 2, is perplexing, as the Board found only that it
was not an unfair labor practice for the employer to not post
the rights, see Rochester, 323 N.L.R.B. at 262, not that there
was a right to silence or any § 8(c) protection. Thus the
1 The Court’s opinion is unclear whether Garmon preemption
applied because the speech in question was an activity arguably
prohibited by the NLRA, so that § 8(c) simply limited the scope of,
but was not a source of, preemption; or whether the speech in
question was arguably ‘‘protected’’ by the NLRA.
8
plaintiffs have pointed to no specific right covered by the
order that is ‘‘arguably protected by the NLRA.’’
Finally, both the district court and the plaintiffs invoke
language from our decision in Chamber of Commerce. There
we struck down an executive order barring employers who
contracted with the government from hiring permanent re-
placements, finding it preempted under Machinists because
hiring permanent replacements was among the ‘‘economic
weapons’’ that Congress intended the NLRA would leave in
the hands of unions or management, as the case might be. 74
F.3d at 1334. In fact, Machinists mentioned hiring of perma-
nent replacements as just such a weapon. 427 U.S. at 153.
Here of course no one suggests that Machinists applies at all.
In a paragraph at the end of Chamber of Commerce, however,
the court said that ‘‘it appear[ed]’’ that the regulations also
ran afoul of Garmon. 74 F.3d at 1338–39. We explained that
the regulations would produce ‘‘a direct conflict with the
NLRA,’’ namely, by requiring some employers to bargain
with a labor union that had lost majority support. Id. No
such conflict exists here, so that aspect of Chamber of Com-
merce has no application.
Plaintiffs also point to a footnote in Chamber of Commerce,
where we said:
We are also dubious that President Bush’s Executive
Order 12,800, which required government contractors to
post notices informing their employees that they could
not be required to join or remain a member of a union,
was legal. It may well have run afoul of Garmon pre-
emption which reserves to NLRB jurisdiction arguably
protected or prohibited conduct.
74 F.3d at 1337 n.10 (emphasis added). This of course refers
to the Beck order issued by the first President Bush, which
no one claims is materially different (for present purposes)
from that of the current President. But we decided Chamber
of Commerce before Rochester Manufacturing, where the
Board rejected the claim that an employer committed an
unfair labor practice by failing to post a Beck notice. 323
N.L.R.B. at 262. Until Rochester Manufacturing, therefore,
9
under the framework set by Davis, that position was ‘‘argua-
ble’’ and thus likely subject to Garmon preemption. We also
note that the footnote is attached to an extensive discussion
about whether the disputed executive order was regulatory or
proprietary, and thus appears mainly to suggest that the
court would also have classified the Beck order as regulatory;
we agree.
* * *
As an alternative ground for affirmance the plaintiffs argue
that the order is not within the President’s authority under
the Procurement Act. That act authorizes him to ‘‘prescribe
such policies and directives, not inconsistent with the provi-
sions of this Act, as he shall deem necessary to effectuate the
provisions of said Act.’’ 40 U.S.C. § 486(a) (2000) (now
codified as amended at 40 U.S.C. § 121). In AFL-CIO v.
Kahn, 618 F.2d 784 (D.C. Cir. 1979), we read this as requiring
that the executive order have a ‘‘sufficiently close nexus’’ to
the values of providing the government an ‘‘ ‘economical and
efficient system for TTT procurement and supply.’ ’’ Id. at
792, 788 (quoting 40 U.S.C. § 471 (now codified as amended
at 40 U.S.C. § 101)). We emphasized the necessary flexibility
and ‘‘broad-ranging authority’’ that we understood the Act to
give the President. Id. at 789. And in fact we found the
nexus test satisfied. Although the order required the govern-
ment to prefer a high bid to a low one, where the low bidder
was not in compliance with the government’s price and wage
guidelines, we accepted the proposition that the order would
induce companies to comply, thereby slowing inflation, so that
‘‘the Government will face lower costs in the future.’’ 618
F.2d at 792–93.
Here the executive order sought to connect its require-
ments to economy and efficiency as follows:
When workers are better informed of their rights, includ-
ing their rights under the Federal labor laws, their
productivity is enhanced. The availability of such a
workforce from which the United States may draw facili-
10
tates the efficient and economical completion of its pro-
curement contracts.
Executive Order 13201, § 1(a), 66 Fed. Reg. at 11,221. The
link may seem attenuated (especially since unions already
have a duty to inform employees of these rights), and indeed
one can with a straight face advance an argument claiming
opposite effects or no effects at all. But in Kahn, too, there
was a rather obvious case that the order might in fact
increase procurement costs (as it plainly did in the short run);
under Kahn’s lenient standards, there is enough of a nexus.
* * *
We reverse the district court’s grant of summary judgment
for the plaintiffs. As they asserted only the Garmon and
Procurement Act claims against the lawfulness of the order,
the district court on remand should grant summary judgment
in favor of the government.
Reversed and remanded.
1
ROGERS, Circuit Judge, dissenting: Under Executive Order
13201, a party, and all its subcontractors, contracting with the
federal government must provide notice to its employees of
their Beck and General Motors rights1 or risk debarment.
The Executive Order thus would regulate activities regarding
union-security clauses, an area where the National Labor
Relations Board has primary jurisdiction under the National
Labor Relations Act (‘‘NLRA’’), and it would do so in a
manner that imposes a duty on employers that the NLRA, as
interpreted by the Board, does not impose. Consequently, it
is preempted under San Diego Building Trades Council v.
Garmon, 359 U.S. 236 (1959), and I respectfully dissent.
When the Supreme Court held in Wisconsin Department of
Industry v. Gould, 475 U.S. 282 (1986), that a state statute
debarring repeat NLRA offenders from doing business with
the State was preempted by the NLRA, the Court explained
that Garmon preemption prevents the States from ‘‘setting
forth standards of conduct inconsistent with the substantive
requirements of the NLRA, [and] also from providing their
own regulatory or judicial remedies for conduct prohibited or
arguably prohibited by the Act.’’ Id. at 286. Concerned that
there not be state standards that would interfere with Con-
gress’ ‘‘integrated scheme of regulation,’’ the Court rejected
the notion that ‘‘a supplemental remedy is different in kind
from those that may be ordered by the Board’’ and would do
no harm. Id. at 287. The focus, the Court explained, was on
the activities, not the method of regulation. Id.
Union-security clauses and activities related to them fall
squarely within the regulatory scope of the NLRA. See §§ 7,
8(a)(3), (b)(2), (f), 29 U.S.C. §§ 157, 158(a)(3), (b)(2), (f). The
Supreme Court acknowledged that ‘‘federal concern is perva-
sive and its regulation complex’’ in this area, Amalgamated
Association of Street, Electric Railway & Motor Coach Em-
ployees v. Lockridge, 403 U.S. 274, 296 (1971), and this court
observed in Thomas v. NLRB, 213 F.3d 651 (D.C. Cir. 2000),
that, as a consequence, ‘‘[a]ll the details necessary to make
1 Communication Workers v. Beck, 487 U.S. 735, 754–63 (1988);
see also NLRB v. Gen. Motors Corp., 373 U.S. 734, 739–45 (1963).
2
the rule of Beck operational were left to the Board, subject to
the very light review authorized by Chevron.’’ Id. at 657
(quoting Int’l Ass’n of Machinists & Aerospace Workers v.
NLRB, 133 F.3d 1012, 1016 (7th Cir.), cert. denied sub nom.
Strang v. NLRB, 525 U.S. 813 (1998)).
Executive Order 13201, by imposing a requirement on
employers about what they must say in the context of union-
security clauses and establishing remedies for noncompliance,
would shift these decisions away from the Board. This runs
afoul of Garmon’s recognition of Congress’ choice of the
Board to implement the NLRA. See Bldg. & Constr. Trades
Council v. Associated Builders & Contractors, 507 U.S. 218,
225 (1993); Metro. Life Ins. Co. v. Massachusetts, 471 U.S.
724, 748–49 & n.26 (1985). The conflict that Garmon preemp-
tion seeks to avoid is evident by comparing the regulatory
scheme envisioned in Executive Order 13201, with its posting
requirement on penalty of debarment, and an employer’s
right under the NLRA, as interpreted by the Board in
Rochester Manufacturing Co., 323 N.L.R.B. 260 (1997), to
speak or not to speak about Beck rights. In rejecting the
General Counsel’s position that the employer’s failure to
advise employees of Beck rights was an unfair labor practice,
the Board in Rochester Manufacturing determined that un-
der the NLRA the employer has no duty to inform its
employees of their rights under Beck, declining to hold that
an employer had an ‘‘affirmative obligation,’’ comparable to
the union’s duty of fair representation, ‘‘to spell out for
employees the precise extent of the union-security obli-
gation.’’ Rochester Mfg., 323 N.L.R.B. at 262. Executive
Order 13201, on the other hand, would force employers to
surrender one of the speech options left open by the Board in
Rochester Manufacturing or risk imposition of a draconian
penalty, in conflict with the primary jurisdiction of the Board
to decide whether an activity is lawful under §§ 7 and 8 of the
NLRA, regardless of whether the Board has exercised its
jurisdiction. See Garmon, 359 U.S. at 245; Chamber of
Commerce v. Reich, 74 F.3d 1322, 1337 n.10 (D.C. Cir. 1996);
see also Washington Serv. Contractors Coalition v. District of
Columbia, 54 F.3d 811, 815–16 (D.C. Cir. 1995). As the
3
plaintiffs point out, the court has acknowledged the broad
scope of preemption under Garmon, see Chamber of Com-
merce, 74 F.3d at 1334, and has rejected a crabbed conception
of ‘‘consistency’’ and thus any suggestion that the employer’s
foregoing one of two permissible options under Executive
Order 13201 creates no Garmon conflict.
The court rejects this approach relying on International
Longshoremen’s Association v. Davis, 476 U.S. 380, 394–98
(1986). Opinion at 5. Because the Board rejected the posi-
tion that non-posting of Beck rights was an unfair labor
practice, it follows, the court says, that there is no basis to
suggest that non-posting is ‘‘arguably’’ prohibited, for the
Board in Rochester Manufacturing ‘‘has decided that the
activity is not prohibited.’’ Opinion at 6. But this is a sleight
of hand, for the court’s approach ignores the conflict that
Executive Order 13201 would create with the regulatory
scheme for union-security clauses that the Board has estab-
lished, namely a scheme in which the employer may or may
not inform its employees about Beck rights.
In rejecting the plaintiffs’ alternative claim that Executive
Order 13201 is preempted because it regulates activity pro-
tected or arguably protected by § 8(c), the court focuses on
the hole in the donut and ignores the donut itself, stating that
‘‘[f]itting a Garmon claim under the language of § 8(c) is
awkward.’’ Opinion at 6. The Supreme Court in construing
§ 8(c) has adhered to the rationale of Garmon preemption,
that ‘‘[t]o leave the States [and non-Board actors] free to
regulate conduct so plainly within the central aim of federal
regulation involves too great a danger of conflict between
power asserted by Congress and requirements imposed by
state law.’’ Garmon, 359 U.S. at 244. Thus, in Linn v.
United Plant Guard Workers, 383 U.S. 53 (1966), the Su-
preme Court held that a state defamation statute was
preempted in labor relations areas except where actual malice
is found. Id. at 61. The Court explained that ‘‘the enactment
of § 8(c) manifests a congressional intent to encourage free
debate on issues dividing labor and management,’’ and that
limiting the applicability of the state statute to cases of actual
malice ‘‘guard[ed] against abuse of libel actions and unwar-
4
ranted intrusion upon free discussion envisioned by the Act.’’
Id. at 62, 65.
The court finds ambiguity in Linn, Opinion at 7 & n.1,
notwithstanding the fact that the Linn Court was clear that
§ 8(c) reflected Congress’ goal of promoting robust and wide-
open debate in the context of labor relations and that the
application of state libel laws would interfere with this goal.
See Linn, 383 U.S. at 62; see also id. at 58 n.3. While not
expressly stating that Garmon preemption applied because
§ 8(c) protects an employer’s free speech rights, this reason-
ing is implicit in Linn. To the extent there may be doubt,
the Supreme Court has plainly spoken elsewhere that § 8(c)
protects the employer’s First Amendment right to express its
views about unionism. See NLRB v. Gissel Packing Co., 395
U.S. 575, 617–18 (1969). That Linn was only partially relying
on § 8(c) has not deterred the Supreme Court from applying
Linn to labor disputes ‘‘in a context where the policies of the
federal labor laws leading to protection for freedom of speech
are significantly implicated.’’ Old Dominion Branch No. 496
v. Austin, 418 U.S. 264, 279 (1974); see id. at 271–73, 276–79.
In sum, the hole – arising from the fact that the language of
§ 8(c) protects employers’s speech rights from the NLRA, see
Opinion at 6–7 – does not eviscerate the donut, which consists
of the broad protection of employer speech under § 8(c), as is
reflected in the Board’s determination that as to Beck rights
the employer has no duty under the NLRA to speak or not to
speak.
Assuming protection of employer speech rights under
§ 8(c), the court concludes that Executive Order 13201’s
posting requirement is not unlike other federal posting re-
quirements imposed on employers. Opinion at 7 (citing Nat’l
Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 113–16 (2d Cir.
2001); Lake Butler Apparel Co. v. Sec’y of Labor, 519 F.2d
84, 89 (5th Cir. 1975)). The plaintiffs do not claim that the
employer’s speech rights under § 8(c) are absolute; to the
contrary. Appellees’ Br. at 29. But Executive Order 13201
is different from the posting requirements cited by the court.
Unlike cases not within the regulatory authority of the Board
where impositions on the employer’s speech rights have been
5
upheld, Opinion at 7, the courts have recognized that the
implementation of Beck and General Motor rights is a matter
‘‘left to the Board.’’ See Thomas, 213 F.3d at 657. The
Board in Rochester Manufacturing preserved the employer’s
right under the NLRA to speak or not to speak on this issue.
Like the state defamation law preempted in Linn, Executive
Order 13201 would punish speech rights that Congress has
protected under the NLRA, as interpreted by the Board, and
thus would create unacceptable conflict with the Board’s
primary responsibility for activities relating to union-security
clauses. Accordingly, I respectfully dissent.