                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                               )
National Association of Manufacturers, et al., )
                                               )
       Plaintiffs,                             )
                                               )
              v.                               )            Civil No. 1:13-cv-01998 (APM)
                                               )
Thomas Perez,                                  )
Secretary, U.S. Department of Labor, et al.,   )
                                               )
       Defendants.                             )
_________________________________________ )


                                 MEMORANDUM OPINION
I.     INTRODUCTION

       On May 20, 2010, the U.S. Department of Labor promulgated a new federal regulation

entitled “Notification of Employee Rights under Federal Labor Laws,” which this opinion shall

refer to as the “Posting Rule.” The Department of Labor developed the Posting Rule in response

to an Executive Order issued by the President under the Procurement Act. The Posting Rule

requires as a condition of nearly all federal contracts that contractors post workplace notices

informing their employees of their rights under the National Labor Relations Act. Contractors

subject to the Posting Rule must display such notices in the same manner that they do other

notices—physically, electronically, or both.     The failure to post can result in cancellation,

termination or suspension of the present contract (or part of the contract), or debarment from

government contracting.

       This case presents constitutional and statutory challenges to the Posting Rule. Plaintiffs

National Association of Manufacturers and Virginia Manufacturers Association are trade groups

that represent government contractors. They filed suit urging the Court to enjoin the Posting Rule,
contending that (1) the rule compels speech in violation of the First Amendment; (2) the President

and the Department of Labor lacked the authority to promulgate the rule under the Procurement

Act; (3) the rule is an arbitrary and capricious construction of the Procurement Act; and (4) the

rule is preempted by the National Labor Relations Act.

       The court concludes that these challenges to the Posting Rule are without merit. The court,

therefore, denies Plaintiffs’ Motion for Summary Judgment and grants Defendants’ Motion for

Summary Judgment.

II.    BACKGROUND

       A.      Creation and Content of the Posting Rule

               1.     Executive Order 13496

       The Posting Rule has its origin in Executive Order (E.O.) 13496, signed by President

Obama on January 30, 2009. Exec. Order No. 13496, 74 Fed. Reg. 6107 (Jan. 30, 2009). Invoking

his authority under “the Constitution and the laws of the United States of America, including the

Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq.,” also known as the

Procurement Act, the President instituted a requirement that every government contract, unless

exempted, include provisions mandating that federal contractors and subcontractors post a notice

“describ[ing] the rights of employees under Federal labor laws.” Id. at 6107-08. The President’s

stated goal for E.O. 13496 was “to promote economy and efficiency in Government procurement.”

Id. at 6107. The Executive Order explained that “[w]hen the Federal Government contracts for

goods or services, it has a proprietary interest in ensuring that those contracts will be performed

by contractors whose work will not be interrupted by labor unrest.” Id. The President concluded:

       The attainment of industrial peace is most easily achieved and workers’
       productivity is enhanced when workers are well informed of their rights under
       Federal labor laws, including the National Labor Relations Act . . . . Relying on
       contractors whose employees are informed of such rights under federal labor laws

                                                2 
 
       facilities the efficient and economical completion of the Federal Government’s
       contracts.

Id.

               2.      The Posting Rule

       President Obama tasked the Secretary of Labor with implementing E.O. 13496 and drafting

the required notice. Id. The Secretary delegated this task to the Office of Labor-Management

Standards within the Department of Labor, which developed the Posting Rule through an informal

notice-and-comment rulemaking process. See generally “Notification of Employee Rights Under

Federal Labor Laws,” 75 Fed. Reg. 28,368 (May 10, 2010), ECF No. 16-2. A final version of the

Posting Rule was issued on May 10, 2010. Id.; see also 29 C.F.R. § 471.

       The Posting Rule requires federal government contractors and subcontractors to post a

notice “in conspicuous places in and about [their] plants and offices where employees covered by

the National Labor Relations Act engage in activities relating to the performance of the contract,

including all places where notices to employees are customarily posted both physically and

electronically.” 29 C.F.R. § 471, Subpt. A, App. A. The workplace notice, entitled “Employee

Rights Under the National Labor Relations Act” (“the Notice”), consists of three sections, which

generally describe (1) collective bargaining rights of employees under the NLRA; (2) anti-union

actions that are illegal for employers to perform; and (3) coercive actions that are illegal for unions

to use. Id. Text at the bottom of the Notice encourages employees who believe their rights have

been violated to contact the National Labor Relations Board. Id. The lower left-hand side of the

Notice states: “This is an official Government Notice and must not be defaced by anyone.” Id.

The lower right-hand side of the Notice features the words “U.S. Department of Labor” and bears

the agency’s seal. Id.; see also OFFICE       OF   LABOR-MGMT. STANDARDS, Exec. Order 13496:

Notification   of   Emp.    Rights    Under    Fed.      Labor   Laws,   U.S. DEP’T      OF   LABOR,

                                                    3 
 
http://www.dol.gov/olms/regs/compliance/EO13496.htm (last visited May 7, 2015) (providing

copies of the Notice in multiple languages) [hereinafter Notice Posting Example]. A copy of the

Notice is appended to this opinion as Exhibit A.

       The Notice does not include every recognized labor right. For instance, as Plaintiffs

complain, the Notice does not mention an employee’s right to object to payment of dues in excess

of the amounts required for representational purposes (a right recognized by the Supreme Court in

Commc’ns Workers of Am. v. Beck, 487 U.S. 735 (1988)); an employee’s right to decertify a union;

or an employee’s right to refuse to pay dues to a union in a right-to-work state. Pls.’ Mem. of the

Nat’l Ass’n of Mfrs. and Va. Mfrs. Ass’n in Supp. of their Mot. for Summ. J., ECF No. 16-1 at 3

[hereinafter Pls.’ Mem.]. During the rulemaking process, the Department of Labor received

comments that the Notice was underinclusive in its description of employee rights, particularly

“rights associated with an anti-union position.” See 75 Fed. Reg. at 28,372. The Department of

Labor rejected revising the Notice to acknowledge such rights, “because of space limitations and

because of the policy choice, as expressed in Executive Order 13496, to revoke a more explicit

notice to employees of Beck rights.” Id. at 28,379.  

       If a contractor refuses to comply with the Posting Rule, it may be subject to a wide range

of sanctions, including conciliation efforts (a simple correction of the violation and a written

promise not to violate the Rule again); cancellation, termination, or suspension of a contract

(or part of a contract); or an order of partial or full debarment from contracts with one or more

federal agencies.   29 C.F.R. §§ 471.12-471.14.         Cancellation, termination, suspension, and

debarment cannot be used as punishments if the contracting agency objects or if the contractor has

not been given an opportunity for a hearing. 29 C.F.R. § 471.14.




                                                   4 
 
              B.             Procedural History

              Plaintiff National Association of Manufacturers is the largest manufacturing association in

the United States, representing both small and large employers. Compl. ¶ 3, ECF No. 1. Plaintiff

Virginia Manufacturing Association is a member of the National Association of Manufacturers

and advocates on behalf of constituent manufacturer-members contributing to the Virginia

economy. Compl. ¶ 4. On December 18, 2013, Plaintiffs filed a complaint alleging that the Posting

Rule and the corresponding Notice promulgated by Defendants—the Department of Labor and

various offices and officials within the agency1—were unlawful, and requesting that the Posting

Rule be preliminarily and permanently enjoined. Compl. at 12-13.

              On May 1, 2014, the parties filed Cross-Motions for Summary Judgment. See Pls.’ Mot.

for Summ. J., ECF No. 16; Pls.’ Mem.; Defs.’ Mot. and Mem. for Summ. J., ECF No. 17

[hereinafter Defs’ Mem.]. The court held oral argument on the motions on March 27, 2015.

III.          STANDARD OF REVIEW

              Summary judgment will only be granted if the movant can show that “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). In making this determination, the court reviews all “[u]nderlying facts and

inferences . . . in the light most favorable to the non-moving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986). A dispute is “genuine” only if a reasonable fact-finder could find

for the nonmoving party, while a fact is “material” only if it is capable of affecting the outcome of




                                                            
1
  The full list of Defendants identified by Plaintiffs includes Thomas E. Perez in his official capacity as Secretary,
United States Department of Labor (“US DOL”); Patricia A. Shiu in her official capacity as Director of the Office of
Federal Contract Compliance Programs, US DOL, Employment Standards Administration; Michael J. Hayes in his
official capacity as Director, Office of Labor-Management Standards, US DOL; the Office of Federal Contracts
Compliance Programs, US DOL, Employment Standards Administration; the Office of Labor-Management Standards,
US DOL; and the US DOL itself. Compl. at 1-2.

                                                               5 
 
litigation. Id. at 248. A non-material factual dispute is insufficient to prevent the court from

granting summary judgment. Id.

       Because the court here is reviewing the administrative record, the typical summary

judgment standards established in Federal Rule of Civil Procedure 56 are not fully applicable.

See Stuttering Found. of Amer. v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007). Instead of

resolving factual issues, the district court is tasked with “determin[ing] whether or not as a matter

of law the evidence in the administrative record permitted the agency to make the decision it did.”

Id. (quoting Occidental Eng’g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985)). On cross-motions

for summary judgment, “each side concedes that no material facts are at issue,” although this

applies “only for the purposes of [each side’s] own motion” and does not mean that “a party [has]

waive[d] the right to a full trial on the merits.” Sherwood v. Wash. Post, 871 F.2d 1144, 1148 n.4

(D.C. Cir. 1989) (quoting McKenzie v. Sawyer, 684 F.2d 62, 68 n.3 (D.C. Cir. 1982), abrogated

on other grounds by Berger v. Iron Workers Reinforced Rodmen, Local 201, 170 F.3d 1111 (D.C.

Cir. 1999)); see also Hodes v. U.S. Dep’t of Treasury, 967 F. Supp. 2d. 369, 373 (D.D.C. 2013).

As described by the Court of Appeals, “when a party seeks review of agency action under the

APA, the district judge sits as an appellate tribunal” and “[t]he ‘entire case’ on review is a question

of law.” Am. Bioscience Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (footnote and

citations omitted).

IV.    ANALYSIS

       A.      First Amendment Challenge to the Posting Rule

       The court begins with Plaintiffs’ challenge to the Posting Rule under the First Amendment.

Plaintiffs contend that the Posting Rule violates their members’ “right to refrain from speaking”

by requiring their members, as a condition of contracting with the federal government, to display



                                                  6 
 
what they say is a Notice biased in favor of unionization. Pls.’ Mem. at 6. They characterize the

posting requirement as “present[ing] federal contractors with an offer they can’t refuse: either post

a list of rights slanted in favor of unionization or subject yourself to sanctions up to and including

debarment from federal contracts.” Id. at 7. In short, Plaintiffs contend that the Posting Rule

unconstitutionally requires their members to adopt the Notice as their own speech with which they

disagree.

                             1.             NAM does not control the result here

              The centerpiece of Plaintiffs’ First Amendment argument is the decision in NAM v. NLRB,

717 F.3d 947 (D.C. Cir. 2013),  overruled in part by Am. Meat Inst. v. U.S. Dep’t of Agric., 760

F.3d 18 (D.C. Cir. 2014). Plaintiffs contend that NAM necessarily compels the conclusion that the

Posting Rule is unconstitutional. See, e.g., Pls.’ Mem. at 4-9. The court disagrees.

              In NAM, the Court of Appeals addressed a nearly identical notice posting requirement

promulgated by the National Labor Relations Board (NLRB). The NLRB posting rule required

that “[a]ll employers subject to the NLRA must post notices to employees, in conspicuous places,

informing them of their NLRA rights . . . .” “Notification of Employee Rights Under the National

Labor Relations Act,” 76 Fed. Reg. 54,006, 54,007 (Aug. 30, 2011); NAM, 717 F.3d at 950. The

text of the notice in NAM was nearly identical to the text of the Notice at issue here.2 Compare

29 C.F.R. § 104, Subpt. A, App. A with 29 C.F.R. § 471, Subpt. A, App. A.

              Non-compliance with the NLRB posting rule subjected employers to potentially harsh

penalties. The refusal to display the NLRB posting could be considered an “unfair labor practice”

under the NLRA. NAM, 717 F.3d at 950 (quoting 29 C.F.R. § 104.210). That is, it could “be


                                                            
2
 Indeed, the notice in NAM was purposely modeled after the Notice developed under E.O. 13496. 76 Fed. Reg. at
54,018; Pls.’ Mem. at 7. The NLRB even cited E.O. 13496 as support for its decision to create its notice posting rule.
76 Fed. Reg. at 54,007; Pls.’ Mem. at 7-8.

                                                                    7 
 
found to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by

[NLRA] Section 7.” Id. In addition, “knowing and willful” noncompliance could be considered

“‘evidence of antiunion animus in cases in which unlawful motive [is] an element of an unfair

labor practice.’” Id. at 955 (quoting 76 Fed. Reg. at 54,035-36.).

              The Court of Appeals struck down the NLRB posting rule, in part, because the rule’s

penalty provisions violated section 8(c) of the NLRA.3                           Section 8(c) “expressly precludes

regulation of speech about unionization ‘so long as the communications do not contain a threat of

reprisal or force or promise of benefit.’” Id. at 954 (citation omitted). Finding a close kinship

between section 8(c) and the First Amendment, the court drew parallels between the two,

observing that section 8(c) in a sense “merely implements the First Amendment[’s]” free-speech

rights in the labor context. Id. at 954-55 (citation omitted) (internal quotation marks omitted).

Accordingly, the court looked to First Amendment cases to decide whether an employer had a

right under section 8(c) not to display the NLRB posting. Id. at 956. The court concluded that,

like the right not to be compelled to communicate government speech under the First Amendment,

section 8(c) encompassed the right not to disseminate the NLRB posting. Id. at 958-59. An

employer’s decision not to post a notice—i.e., a decision to refrain from dissemination of speech—

could not, therefore, be used by the NLRB to find “an unfair labor practice . . . or evidence of an

unfair labor practice.” Id. at 959.




                                                            
3
    Section 8(c) provides:

              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 evidence of an unfair labor practice under
              any of the provisions of this [Act], if such expression contains no threat of reprisal or force or
              promise of benefit.

29 U.S.C. § 158(c).

                                                                8 
 
       Plaintiffs argue that NAM’s discussion of the First Amendment inexorably leads to the

conclusion that the Posting Rule at issue here abridges their members’ First Amendment speech

rights. But NAM does not carry the constitutional weight that Plaintiffs ascribe to it. As Plaintiffs

conceded at oral argument, NAM did not announce a First Amendment holding. Draft Tr. of Oral

Arg. at 4-5, NAM v. Perez, No. 14-1998 (D.D.C. argued Mar. 27, 2015) [hereinafter “Draft Tr.”].

Rather, the Court of Appeals held that the NLRB’s posting rule violated a single statute—section

8(c) of the NLRA—because the rule treated the refusal to post as an unfair labor practice and as

evidence of anti-union animus. NAM, 717 F.3d at 959.

       To be sure, the court in NAM did rely on First Amendment jurisprudence to give content

to the protections afforded by section 8(c). But the court also acknowledged that section 8(c) does

more than protect the right of free speech in the labor context. Section 8(c)’s “enactment also

manifested a congressional intent to encourage free speech on issues dividing labor and

management.” Id. at 955 (citing Chamber of Commerce of the U.S. v. Brown, 554 U.S. 60, 67

(2008) (internal quotation marks omitted)). Further, the section “serves a labor law function of

allowing employers to present an alternative view and information that a union would not present.”

Id. (citation omitted) (internal quotation marks omitted). Thus, it would be a mistake to conclude

that section 8(c)’s protections in the labor context are co-extensive with the First Amendment’s

protection of speech.

       Moreover, and importantly for this case, the court made clear that the right to silence at

issue in NAM was rooted only in section 8(c) and should not be confused with a broader right to

silence. The right not to speak under section 8(c), the court concluded, “was only against the

Board’s finding an unfair labor practice, or evidence therefore.” Id. at 959. “Beyond that,” the

court observed, “‘an employer’s right to silence is sharply constrained in the labor context, and



                                                 9 
 
leaves it subject to a variety of burdens to post notices of rights and risks.’” Id. (quoting UAW-

Labor Emp’t & Training Corp. v. Chao, 325 F.3d 360, 365 (D.C. Cir. 2003) (emphasis added)).

The court again emphasized the limits of section 8(c), stating “that apart from the § 8(c) bar against

unfair-labor-practice charges, the National Labor Relations Act did not give employers an

unconstrained right to silence.” Id. In view of the Court of Appeals’ cabining of its decision to

section 8(c), the court declines to read NAM to compel the conclusion that the Posting Rule violates

the First Amendment.

                             2.             The Posting Rule does not unconstitutionally compel speech

              Having concluded that NAM does not determine the result here, the court turns to Plaintiffs’

related argument that, under Supreme Court precedent, the Posting Rule unconstitutionally

compels speech because it forces Plaintiffs’ members to convey speech to its employees that they

do not support. See Pls.’ Mem. at 2-7. As a threshold matter, the court agrees with Defendants

that the Department of Labor-drafted Notice itself is “government speech.” See NAM, 717 F.3d at

956 (“It is obviously correct that the poster contains the Board’s speech.”).4 But that hardly ends

the First Amendment inquiry. Even though the “Government’s own speech” is “exempt from First

Amendment scrutiny,” Johanns v. Livestock Marketing Ass’n, 544 U.S. 550, 553 (2005), the First


                                                            
4
  The government-speech doctrine is a relatively recent development in federal case law and the test to determine if
something is an example of government speech has not been clearly established. In Pleasant Grove City, Utah v.
Summum, 555 U.S. 460 (2009), and in Johanns v. Livestock Marketing Ass’n, 544 U.S. 550 (2005), the Court suggested
that the state’s “final approval authority” and “effective control,” over a proposed message would affect whether the
speech would be classified as government speech. See Summum, 555 U.S. at 472-73; Johanns, 544 U.S. at 560-61.
The Court in Summum also highlighted the importance of context and the public perception of the speaker’s identity
in determining government speech. 555 U.S. at 469-72. Several circuit courts of appeals, however, have found yet
another test for government speech. This alternative test, similar to—and at times, derived from—Justice Souter’s
concurring opinion in Summum, poses the question “whether a reasonable and fully informed observer would
understand the expression to be government speech, as distinct from private speech the government chooses to oblige.”
555 U.S. at 487 (Souter, J., concurring); see, e.g., Texas Div., Sons of Confederate Veterans, Inc. v. Vandergriff, 759
F.3d 388, 394 (5th Cir. 2014), cert granted, 135 S. Ct. 752 (Dec. 5, 2014) (No. 14-144); Roach v. Stouffer, 560 F.3d
860, 867 (8th Cir. 2009); Choose Life Ill., Inc. v. White, 547 F.3d 853, 863 (7th Cir. 2008). Whatever the test, the
Notice at issue here is plainly government speech.


                                                                    10 
 
Amendment nevertheless limits when the government can require a private party to host or

communicate government speech. Rumsfeld v. Forum for Academic and Institutional Rights, Inc.,

547 U.S. 47, 63 (2006) [hereinafter FAIR].

       In other words, although the government may regulate the content of what is expressed

when it enlists private parties to convey its message, Pleasant Grove City, Utah v. Summum, 555

U.S. 460, 468 (2009), “the First Amendment does not le[ave] it open to public authorities to compel

[a person] to utter a message with which he does not agree,” Johanns, 544 U.S. at 557 (citation

omitted) (internal quotation marks omitted). For example, in W. Va. Bd. of Ed. v. Barnette, 319

U.S. 624 (1943), the Court held that schoolchildren could not be forced to recite the Pledge of

Allegiance on threat of expulsion from school. Similarly, in Wooley v. Maynard, 430 U.S. 705

(1977), the Court held that that Jehovah’s Witnesses could not be compelled to host the slogan

“Live Free or Die” on their license plates.

       More recently, in FAIR, the Court gave its fullest articulation of its “compelled speech”

jurisprudence. There, a group of law schools challenged the Solomon Amendment, which

provided that, if any part of an institution of higher education denied equal access to military

recruiters, the entire institution would be disqualified from certain federal funding. FAIR, 547

U.S. at 51.    The law schools claimed that the Solomon Amendment abridged their First

Amendment freedoms of speech and association, because it compelled them to choose between

accommodating a military recruiter’s message and ensuring the availability of federal funding. Id.

at 53. In rejecting the law schools’ challenge, the Court observed that “[t]he compelled speech

violation in each of our prior cases . . . resulted from the fact that the complaining speaker’s own

message was affected by the speech it was forced to accommodate.” 547 U.S. at 63. In those

cases, according to the Court, the compelled speech at issue ran afoul of the First Amendment



                                                11 
 
either because it sufficiently interfered with the host’s ability to convey a contrary message or it

created an unacceptable risk that the required expression would be viewed as the host’s speech.

See id. at 64-65. If, however, the objecting party “remain[s] free under the statute to express

whatever views they may have . . . all the while retaining eligibility for federal funds,” then the

statute does not violate the objecting party’s First Amendment speech rights. Id. at 60. The Court

concluded that, because “nothing in the Solomon Amendment restricts what the law schools may

say about the military’s policies,” and because law school students “can appreciate the difference

between speech a school sponsors and speech the school permits because legally required to do

so,” there was no First Amendment violation. Id. at 65.

       There is little material distinction between FAIR and this case. The facts differ, but the

First Amendment analysis and outcome are the same. Like the Solomon Amendment, the Posting

Rule is a “far cry” from the government-mandated speech deemed unconstitutional in Barnette

and Wooley. Id. at 62. Requiring an employer to post government speech about labor rights is

“simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to

display the motto ‘Live Free or Die,’ and it trivializes the freedom protected in Barnette and

Wooley to suggest that it is.” Id.

       Moreover, the Posting Rule does not require a contractor to speak at all. Rather, the

contractor is required to host government speech as a condition of receipt of a federal contract.

That, of course, presents a contactor with a choice—agree to post the Notice or forgo federal

contracting. But that choice is no different than the one presented by the Solomon Amendment—

either accommodate a military recruiter or forgo federal funds. See id. at 51; see also Agency for

Int’l Develop. v. Alliance for Open Society Int’l., Inc., 133 S. Ct. 2321, 2328 (2013) (“As a general

matter, if a party objects to a condition on the receipt of federal funding, its recourse is to decline



                                                  12 
 
the funds,” even if the condition itself “may affect the recipient’s exercise of its First Amendment

rights.”).

              Additionally, the Posting Rule does not interfere with the contractor’s ability to convey a

different message. A contractor can still express its own views or engage in lawful activities to

discourage unionization. Indeed, nothing in the rule prevents a contractor from creating its own

posting and placing it next to the Department of Labor-drafted Notice, so as to make clear that the

Notice does not reflect the contractor’s own views and its display is government mandated. See

NAM, 717 F.3d at 958 n.15 (“We suppose an employer could post a statement next to the poster

pointing out its compulsory nature.”). Likewise, the Posting Rule does not prevent the contractor

from displaying an employee’s Beck rights, if the contractor believes that the Notice’s listing of

rights is underinclusive. A contractor’s speech is thus not “affected by the speech it [is] forced to

accommodate.” FAIR, 547 U.S. at 63.5

              Nor are employees likely to believe that the Notice is their employer’s speech. At oral

argument, Plaintiffs admitted that “the majority of Americans may not confuse [the Notice] for

anything other than government speech,” but nevertheless asserted that “very often employees

don’t know whose speech that is.” Draft Tr. at 12.6 But common sense dictates otherwise.

See FAIR, 547 U.S. at 65 (“We have held that high school students can appreciate the difference

between speech a school sponsors and speech the school permits because legally required to do


                                                            
5
  At oral argument, Plaintiffs asserted that its members feared that, if they posted their own clarifying or dissenting
notice, such posting could be used as evidence of “anti-union” animus. Draft Tr. at 9-11. But that prospect is unlikely
after NAM. NAM struck down the NLRB’s rule not only because it made the refusal to post an unfair labor practice,
but also because it treated the failure to post “as evidence of antiunion animus in cases involving, for example,
unlawfully motivated firings or refusals to hire—in other words, because it treats such a failure as evidence of an
unfair labor practice.” 717 F.3d at 959. In so holding, the court recognized that Congress had intended for section
8(c) to “serve[] a labor law function of allowing employers to present an alternative view and information that a union
would not present.” Id. (citation omitted) (emphasis added). Because under section 8(c) the refusal to post cannot be
used as evidence of anti-union animus, it logically follows that a truthful, noncoercive counter-posting of different
employee rights likewise could not be used as evidence of anti-union animus.
6
  The court will consider this argument, even though the record contains no evidence to support it.

                                                               13 
 
so, pursuant to an equal access policy . . . . Surely students have not lost that ability by the time

they get to law school.”). The Notice is marked with the words “U.S. Department of Labor,” bears

the agency’s seal, and states “This is an official Government Notice and must not be defaced by

anyone.” See Exhibit A. It also directs the employee to a federal agency—the NLRB—if “you

believe your rights or the rights of other have been violated.” 7 Id. Further, because the federal

government requires employers to host a variety of rights notices,8 employees are likely to be

familiar with the concept of government postings and understand that such postings are not their

employer’s speech. And, as discussed above, an employer may lessen the likelihood that its

employees will mistake the Notice for the employer’s speech by creating a supplementary rights

posting or clarifying notice.                                  Therefore, just as in FAIR where “[n]othing about recruiting

suggest[ed] that [the] law schools agree[d] with any speech by recruiters,” 547 U.S. at 65, nothing

about maintaining a clearly drafted government notice suggests that an employer espouses its

contents.

              Plaintiffs attempt to distinguish FAIR on the ground that the Posting Rule “does not require

contractors to provide Defendants with equal access to their facilities; rather, it mandates that

Plaintiffs post a specific government-authored notice.” Pls.’ Mem. in Opp’n, ECF No. 18, at 4

[hereinafter Pls.’ Opp’n]. The court, however, fails to understand how that distinction is material

under the First Amendment. If anything, mandating a government speaker’s access to property is

far more intrusive than requiring the posting of a rights notice. The content of a live government

speaker’s expression could vary from visit to visit and from speaker to speaker and could easily


                                                            
7
  The Notice is available in multiple languages, so language should not pose a barrier to employees’ understanding of
the Notice’s source. Available languages include: English, Cantonese, French, Hmong, Laotian, Mandarin Chinese,
Somali, Spanish, and Vietnamese. See, e.g., Notice Posting Example.
8
  Employers are required to post many notices in the workplace besides the Notice at issue in this case. See, e.g.,
DEP’T OF LABOR, Poster Page: Workplace Poster Requirements for Small Businesses and Other Employers,
http://www.dol.gov/oasam/boc/osdbu/sbrefa/poster/matrix.htm (last visited May 7, 2015).

                                                                             14 
 
be communicated without the host’s knowledge, such as through a private conversation, thereby

making it difficult for the host to express disagreement. By contrast, the Notice is static in its

content and its location and its delivery is predictable, making it much simpler for an employer to

express contrary views. Thus, the fact that this case involves a required posting, whereas FAIR

involved required access, does not produce a different outcome.

       Finally, Plaintiffs argue that the result in this case should be different than FAIR because

the Notice is a “slanted list of rights that unfairly promotes unionization while pointedly omitting

a host of other critical employee rights.” Pls.’ Opp’n at 4. Leaving aside the thorny question of

how the court would go about deciding whether or not the Notice is “slanted,” it is well settled that

“when the State is the speaker, it may make content-based choices.” Rosenberger v. Rector &

Visitors of the Univ. of Va., 515 U.S. 819, 833 (1995); cf. Rust v. Sullivan, 500 U.S. 173, 193

(1991) (“The Government can, without violating the Constitution, selectively fund a program to

encourage certain activities it believes to be in the public interest, without at the same time funding

an alternative program which seeks to deal with the problem in another way.”). And when the

government chooses to speak, the Court has “permitted the government to regulate the content of

what is or is not expressed when it is the speaker or when it enlists private entities to convey its

own message.” Rosenberger, 515 U.S. at 833 (emphasis added). Thus, even if the Notice is

incomplete, the decision to omit certain rights to effectuate a presidential policy decision does not

offend the First Amendment.

       B.      The President’s Authority to Promulgate the Rule

       Plaintiffs next challenge Defendants’ statutory authority to promulgate the Posting Rule,

arguing that the Procurement Act did not empower the President and, by extension, the Department

of Labor to promulgate it. Pls.’ Mem. at 13-17. Plaintiffs argue that “[t]he clear intent of the Rule



                                                  15 
 
in the present case is not to foster economic efficiency, but rather to set labor policy under the

pretext of economic regulation.” Pls.’ Opp’n at 8. Plaintiffs’ argument is foreclosed by UAW-

Labor Emp’t & Training Corp. v. Chao, 325 F.3d 360 (D.C. Cir. 2003).

              UAW involved a challenge to E.O. 13201, which was issued by President Bush on February

17, 2001. See 325 F.3d at 362; see also Exec. Order No. 13201, 66 Fed. Reg. 11,221 (Feb. 17,

2001). (E.O. 13201 was later expressly revoked by E.O. 14396, which is the Executive Order at

issue here. Exec. Order No. 13496, 74 Fed. Reg. at 6110.) E.O. 13201 required contractors to

post notices at their facilities informing employees of what are commonly known as General

Motors and Beck rights, which are “rights under federal law that protect employees from being

forced to join a union or to pay mandatory dues for costs unrelated to representational activities.”

UAW, 325 F.3d at 361 (D.C. Cir. 2003).9 Whereas E.O. 13496 issued by President Obama would

emphasize an employee’s right to unionize and to engage in collective bargaining, E.O. 13201

focused on an employee’s right to refrain from joining a union and her Beck rights. Compare

Exec. Order No. 13496, 74 Fed. Reg. at 6107 with Exec. Order No. 13201, 66 Fed. Reg. at 11,221-

22.

              Despite differences in content, the two Executive Orders share critical similarities. Both

President Obama and President Bush invoked the President’s authority under the Procurement Act

“to promote economy and efficiency in Government procurement.” Compare Exec. Order No.

13496, 74 Fed. Reg. at 6107 with Exec. Order No. 13201, 66 Fed. Reg. at 11,221. Both Executive

Orders also offered similar rationales for their issuance. E.O. 13201 offered as its policy rationale:


                                                            
9
  In General Motors, the court found that under section 8(a)(3) of the National Labor Relations Act, employees could
be required to pay membership dues to a union, in lieu of membership, as a condition of employment. N.L.R.B. v.
General Motors Corp., 373 U.S. 734, 735, 738 (1963). In Beck, the Court held, in part, that even if all employees
were required under section 8(a)(3) to pay periodic union dues whether or not they wished to become union members,
the union could not expend funds so collected on activities unrelated to collective bargaining activities over the
objections of dues-paying nonmember employees. Commc’ns Workers of Am. v. Beck, 487 U.S. at 738, 762-63 (1988).

                                                               16 
 
“When workers are better informed of their rights, including their rights under the Federal labor

laws, their productivity is enhanced. The availability of such a workforce from which the United

States may draw facilitates the efficient and economical completion of its procurement contracts.”

Exec. Order No. 13201, 66 Fed. Reg. at 11,221. E.O. 13496 similarly explained that “[t]he

attainment of industrial peace is most easily achieved and workers’ productivity is enhanced when

workers are well informed of their rights under Federal labor laws, including the National Labor

Relations Act.” Exec. Order No. 13496, 74 Fed. Reg. at 6107. It continued: “Relying on

contractors whose employees are informed of [their rights] under Federal labor laws facilities the

efficient and economical completion of the Federal Government’s contracts.” Id.

       The plaintiffs in UAW, as Plaintiffs do here, challenged the President’s exercise of authority

under the Procurement Act. The Court of Appeals rejected that contention, even though it

questioned the President’s stated rationale for the posting requirement. See UAW, 325 F.3d at 367-

68. The court observed that the link between a notice of labor rights and an efficient procurement

policy “may seem attenuated” and that “one can with a straight face advance an argument claiming

opposite effects or no effects at all.” UAW, 325 F.3d at 366-67. Nevertheless, the court affirmed

the President’s exercise of authority, explaining that executive orders promulgated under the

authority of the Procurement Act need only have a “sufficiently close nexus to the values of

providing the government an economical and efficient system for . . . procurement and supply.”

UAW, 325 F.3d at 366 (D.C. Cir. 2003) (citation omitted) (internal quotation marks omitted).

Relying on the “lenien[cy]” of the nexus requirement and the “necessary flexibility” and “broad-

ranging authority” afforded the President under the statute, the Court of Appeals rejected the

plaintiffs’ challenge to the President’s action. Id. at 366-67.




                                                 17 
 
              If the “attenuated” rationale on which E.O. 13201 was premised was adequate in UAW, the

same result must obtain here. After all, the justifications for the two Executive Orders are nearly

identical. Compare Exec. Order No. 13496, 74 Fed. Reg. at 6107 with Exec. Order No. 13201,

66 Fed. Reg. at 11,221. Plaintiffs argue that UAW is distinguishable from this case because “UAW

. . . did not deal with a one-sided misrepresentation of the rules. Quite the contrary, UAW

concerned a notice that contained a full, fair and neutral reading of the rights available under Beck.”

Pls’ Opp’n at 16. But Plaintiffs fail to explain why a substantively different posting—one that is

not claimed to be factually inaccurate—whose promulgation was based on nearly the same

rationale found acceptable in UAW, compels a different result.10 It does not.

              C.             The Rule as Arbitrary and Capricious Under the Administrative Procedure Act

              Plaintiffs next contend that the Posting Rule violates the Administrative Procedure Act

(APA) because it is as an arbitrary and capricious interpretation of the Procurement Act.

Pls.’ Mem. at 17-18. Under the APA, a court must set aside an agency action, finding, or

conclusion if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.” 5 U.S.C. § 706(2)(A). Judicial review under the “arbitrary and capricious” standard is

“highly deferential” and “presumes the agency’s action to be valid.” Envtl. Def. Fund, Inc. v.

Costle, 657 F.2d 275, 283 (D.C. 1981). “A reviewing court may not set aside an agency rule that

is rational, based on consideration of the relevant factors and within the scope of the authority

delegated to the agency by statute . . . .” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto Ins. Co., 463 U.S. 29, 42-43 (1983). The agency must articulate a “rational connection

                                                            
10
   The court disagrees with Plaintiffs’ assertion that the Court of Appeals in NAM characterized the similar notice at
issue there as “one-sided.” Pls.’ Opp’n at 15. Instead, the Court of Appeals merely acknowledged that the plaintiffs
there, who also are the Plaintiffs here, viewed the posting as “one-sided,” without saying whether it agreed with that
characterization or not. See NAM, 717 F.3d at 958 (stating that “Plaintiffs . . . see the poster as one-sided, as favoring
unionization, because it ‘fails to notify employees, inter alia, of their rights to decertify a union, to refuse to pay dues
to a union in a right-to-work state, and to object to payment of dues in excess of the amounts required for
representational purposes.’”) (quoting the plaintiffs’ brief) (emphasis added)).

                                                               18 
 
between the facts found and the choice made.” Burlington Truck Lines v. United States, 371 U.S.

156, 168 (1962).

              Plaintiffs argue that the Posting Rule is arbitrary and capricious because “Defendants’

justification for the Rule . . . reveals no evidence whatsoever to support the conclusion that

requiring all contractors to post a notice in any way improved procurement efficiency.” Pls.’ Mem.

at 17-18. They point to the absence of any studies, analysis, expert opinions, and even an alleged

concession by the Department of Labor that “‘an argument can be made that the order will have

the opposite effect of its stated goal.’” Id. at 18 (citing 75 Fed. Reg. at 28,370).11 But in that

respect this case is again no different than UAW. The Court of Appeals concluded there that even

an “attenuated” link between a Beck rights posting and procurement policy was sufficient to pass

muster under the Procurement Act, even though “one can with a straight face advance an argument

claiming opposite effects or no effects at all.” UAW, 325 F.3d at 367-68.

              Although the posting rule in UAW was reviewed under the “lenient” “nexus” standard

under the Procurement Act, instead of the APA, the court discerns little practical difference

between the two applicable standards in this case. Compare UAW, 325 F.3d at 366 (stating that

the executive order need only “have a ‘sufficiently close nexus’ to the values of providing the

government an ‘economical and efficient system for . . . procurement and supply’”) (citation

omitted) with Nat’l Ass’n of Clean Air Agencies v. EPA, 489 F.3d 1221, 1228 (D.C. Cir. 2007)

(stating that an agency action will be upheld if it “has considered the relevant factors and

articulated a ‘rational connection between the facts founds and the choice made’”) (citation

omitted). The Posting Rule’s Notice may indeed have an attenuated link to procurement policy as


                                                            
11
  The Department of Labor did not “actually concede,” as Plaintiffs contend, that the Posting Rule could have the
“opposite effect of its stated goal.” Pls.’ Mem. at 18. Rather, the final rulemaking simply noted that UAW had
approved the Beck rights posting under the Procurement Act, even though “an argument [could] be made that the order
[would] have the opposite effect.” 75 Fed. Reg. at 28,370 (citing UAW, 325 F.3d at 367-78).

                                                               19 
 
Plaintiffs contend. But just as the Court of Appeals found that the posting rule in UAW passed

muster under the lenient “sufficiently close nexus” standard, so too must this court sustain the

Posting Rule under the APA.12

              D.             Preemption

              Plaintiffs’ final challenge to the Posting Rule is that it is invalid under two separate theories

of preemption—Garmon preemption and Machinists preemption. Pls.’ Mem. at 19-22. Again,

the court disagrees.

                             1.             Garmon preemption

              The Supreme Court developed the concept of Garmon preemption in San Diego Building

Trades Council, Millmen’s Union, Local 2020 v. Garmon, 359 U.S. 236 (1959).                                 “Garmon

preemption applies to regulation (usually by states)[13] of activities that are arguably ‘protected by

§ 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8.’” UAW,

325 F.3d at 363. This form of preemption is rooted in the “determination that in enacting the

NLRA Congress intended for the [NLRB] generally to exercise exclusive jurisdiction in this area.”

Int’l Longshoremen’s Ass’n, AFL-CIO v. Davis, 476 U.S. 380, 391 (1986).

              Decisions about which specific activities fall within the scope of sections 7 and 8 are

generally left “in the first instance” to the NLRB. Garmon, 359 U.S. at 245. If the NLRB,

however, has not decided whether a specific activity falls within those sections, the court must


                                                            
12
   Throughout their briefs and at oral argument, Plaintiffs have characterized the Notice as “one-sided,” “slanted,” and
“misleading.” See, e.g., Pls.’ Mem. at 2, 3, 8, 21; Pls.’ Opp’n at 4, 15-18; Draft Tr. at 5-7, 13, 16-17. Plaintiffs,
however, have not argued that the Notice is arbitrary and capricious, and thus violates the APA, because its contents
are “one-sided,” “skewed,” and “misleading.” Rather, Plaintiffs’ arguments under the APA, as discussed, are (1)
Congress did not delegate authority to the President and the Department of Labor to promulgate a rights posting under
the Procurement Act, Pls.’ Opp’n at 13-17, and (2) even if Congress did so, the final Notice here was arbitrary and
capricious because its adoption lacked any evidentiary basis, id. at 17-19. Because Plaintiffs have not made the
argument, the court does not reach the question whether the Posting Rule violates the APA because it excluded certain
recognized employee rights in favor of others.
13
   Garmon analysis is equally applicable to regulation of labor-related activities by other federal agencies. See, e.g.,
UAW, 325 F.3d at 363.

                                                                20 
 
assess the activity to determine whether it is “arguably” likely to be protected or prohibited under

the NLRA. See UAW at 363-65; see also Int’l Longshoremen’s Ass’n, 476 U.S. at 397 (stating

that, in evaluating an argument for preemption, “a court first must decide whether there is an

arguable case for pre-emption; if there is, it must defer to the Board, and only if the Board decides

that the conduct is not protected or prohibited may the court entertain the litigation”).

       Neither side has identified an NLRB ruling holding that the refusal to post a rights notice—

the activity whose regulation Plaintiffs claim is preempted—is an activity either protected or

prohibited by the NLRA. Therefore, the court must evaluate whether such activity is “arguably”

protected or prohibited under the Act.

                       a.      Section 8(c)

       Turning first to section 8(c), Plaintiffs argue that “8(c) of the NLRA protects the right of

employers to remain silent regarding employee rights under the NLRA.” Pls.’ Mem. at 21. In

other words, they claim that section 8(c) protects the right of an employer to refuse to post a rights

notice. But that argument is foreclosed by UAW. Asked to enjoin the Beck rights notice at issue

there on the ground that it was preempted by section 8(c), the court in UAW observed that “fitting

a Garmon claim under the language of § 8(c) is awkward . . . . [T]he 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.” 325 F.3d at 365. The court nevertheless considered the

Garmon claim, but concluded that it did not apply. Id. “[E]ven 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.” Id.

Therefore, the court concluded, “plaintiffs have pointed to no specific right covered by the

[posting] order that is ‘arguably protected by the NLRA.’” Id.; see also NAM, 717 F.3d at 959



                                                 21 
 
(confirming that “apart from the § 8(c) bar against unfair-labor-practice charges, the National

Labor Relations Act did not give employers an unconstrained right to silence”). The same

reasoning—and result—occurs here. Just as the refusal to post the Beck rights notice was not

protected activity under section 8(c), the refusal to post the Notice here is not protected activity

under that section.

       The refusal to post also is not an arguably prohibited activity under section 8(c). This issue

was expressly addressed by the court in NAM. See 717 F.3d at 959. Although the NLRB had

attempted to prohibit the refusal to post by declaring the refusal to post an unfair labor practice

and evidence of anti-union animus, the court held that a refusal to post a government notice could

not be prohibited under section 8(c) of the NLRA. Id. Because NAM found that the refusal to post

cannot be prohibited under section 8(c), and because Garmon preemption only applies to an

activity that can be arguably prohibited (or protected) by the NLRA, the Posting Rule is not

preempted under Garmon.

                       b.      Section 7

       Seeming to accept that Garmon preemption cannot rest on section 8(c), Plaintiffs argue for

the first time in their opposition brief that “the Notice unquestionably addresses the protected

activities set forth in § 7 of the Act,” specifically an employee’s “right to refrain” from “the

misleading and one-sided presentation of employee rights which favors unionization.” Pls.’ Opp’n

at 17. But Plaintiffs fare no better under section 7. Section 7, entitled “Right of employees as to

organization, collective bargaining, etc.,” provides that “employees shall have the right to self-

organization, to form, join, or assist labor organizations, to bargain collectively . . . and to engage

in other concerted activities for the purpose of collective bargaining or other mutual aid or

protection, and shall have the right to refrain from any or all of such activities[.]” 29 U.S.C. § 157



                                                  22 
 
(emphasis added). It is hard to conceive how section 7, which plainly applies only to an employee’s

rights, could preempt a regulation that speaks only to an employer’s obligation to post a rights

notice. Because the Posting Rule concerns only what an employer has to do—while section 7

speaks only to employee rights—section 7 does not arguably protect or prohibit an employer’s

refusal to post a rights notice.

                2.      Machinists preemption

        Plaintiffs also claim that the Posting Rule is preempted under Lodge 76, International

Association of Machinists & Aerospace Workers, AFL-CIO v. Wisconsin Employment Relations

Commission, 427 U.S. 132 (1976). Plaintiffs argue that Machinists prohibits regulation of labor-

management activities which Congress intended to be unregulated and assert that rights posting is

one of these protected activities. Pls.’ Mem. at 21-22. If Congress wanted a federal agency to

have the authority to create a notice posting requirement, Plaintiffs argue, it would have expressly

granted such power in the NRLA. Pls.’ Opp’n at 18. Because no such express rulemaking

authority is granted within that statute, Plaintiffs assert that Congress intended that speaking or

refraining to speak through a government-required notice should remain unregulated. Id.; see also

Pls’ Mem. at 22; Draft Tr. at 26-28.

        In Machinists, the Supreme Court was concerned about maintaining the balance between

“labor and management [that is] expressed in our national labor policy.” 427 U.S. at 146. The

Court found that Congress had intentionally left certain types of employer and employee conduct

unregulated “to be controlled by the free play of economic forces.” Id. at 140 (citation omitted).

These types of unregulable self-help activities comprise “economic weapons” to be used by either

the employer or the employee when “more peaceful measures [do] not avail.” Id. at 147. The

State “may not prohibit the use of such weapons or ‘add to an employer’s federal legal obligations



                                                23 
 
in collective bargaining’ any more than in the case of employees.” Id. (citation omitted). Thus,

“Machinists preemption applies when a state” or here, another federal agency, “attempts to

regulate an activity that, although not necessarily protected or prohibited by the NLRA, is an

‘economic weapon’ the exercise of which Congress intended to leave unrestricted.” UAW, 325

F.3d at 363.

              To determine if specific self-help-related economic activity is preempted under Machinists,

the court must ask “whether ‘the exercise of plenary state authority to curtail or entirely prohibit

self-help would frustrate effective implementation of the Act’s processes.’” Id. at 147-48. Here,

the Posting Rule does not “frustrate effective implementation” of the NLRA in regard to the

methods available to assist employers and employees in collective bargaining. Notice posting is

not the kind of self-help “economic weapon” that Congress contemplated parties would use in a

labor dispute. See Machinists, 427 U.S. at 144. Indeed, it is difficult to conceive how a

government-written and -required rights notice could be used by either employees or employers

as leverage in a labor negotiation. The Notice’s sole function is to provide information. Once

posted, its purpose is accomplished. If a contractor and its employees were then to engage in

collective bargaining, the posting itself would exert none of the kind of economic pressure that the

Court in Machinists held was free from state regulation.14 And, even if it did, there is nothing in

the Posting Notice that either prevents an employer (or an employee) from posting or distributing

other notices to promote their own labor goals or forces an employer to make any comment about

the issue at all. Because the Posting Rule does not frustrate effective implementation of the NLRA

by limiting or prohibiting the use of self-help, the Rule is not preempted under Machinists.


                                                            
14
  Machinists identified an employer’s ability to hire permanent replacement employees and to institute a lockout as
examples of economic weapons. 427 U.S. at 152-53. Employee weapons include, among other things, refusing to
carry out the employer’s work or policies, reporting late to work, engaging in “sit-ins,” and picketing and distributing
leaflets. See id. at 142.

                                                               24 
 
                                                ***

       Finally, Plaintiffs appear to make another preemption argument, without giving it that exact

label. Both in the context of their argument that the Procurement Rule violates the APA, see, e.g.,

Pls.’ Mem. at 13-17, and in the context of their Machinists preemption argument, Pls.’ Mem at 22;

Draft Tr. at 25-27, Plaintiffs assert that the Department of Labor lacked the statutory authority to

promulgate the Posting Rule. The court views this as a broader argument for preemption—namely,

that Congress intended to preempt regulations like the Posting Rule by authorizing only the NLRA

to implement labor laws.

       Plaintiffs’ preemption argument stems from the concurring majority opinion in NAM,

which concluded that Congress did not give the NLRB the authority to promulgate a rights posting

requirement. See 717 F.3d at 966-67 (“Judge Brown and I would also hold . . . that the Board is

without authority to promulgate the posting rule under NLRA section 6.”) (Henderson, J.,

concurring); see also Pls.’ Mem. at 14-15; Pls.’ Opp’n at 14. Their argument continues that,

because Congress left the implementation of the NLRA exclusively to the NLRB, see 29 U.S.C.

§ 156, and because the NLRB itself cannot promulgate a posting rule per the concurring majority

in NAM, 717 F.3d at 717 (concluding “Congress [did not] intend[] to authorize a regulation so

aggressively prophylactic as the posting rule”), the Department of Labor likewise lacked the

authority to promulgate a posting rule addressing labor rights, Pls.’ Mem. at 15; Pls.’ Opp’n at 15.

“If the NLRB lacks statutory authority to require Notice posting, surely Defendants lack such

authority as well.” Pls.’ Mem. at 15; see also Draft Tr. at 25-28 (asserting a “broad field

preemption” that limits rulemaking authority in labor law to the NLRB).

       The straightforward answer to this argument is that the Posting Rule was not premised on

the NLRA, but the Procurement Act. Thus, even if the NLRB lacks the authority to require a labor



                                                25 
 
rights posting, that statutory limitation does not prohibit the Department of Labor from advancing

policy goals under the Procurement Act through a rights posting. UAW, 325 F.3d at 367.

But Plaintiffs appear to advance a larger point, which is that because Congress intended for the

NLRB generally to exercise exclusive jurisdiction with regard to labor relations, see Int’l

Longshoremen’s Ass’n, 476 U.S. at 391, no other federal agency should be able to require a labor

rights posting if the NLRB cannot do so itself. Though not without intuitive appeal, Plaintiffs’

argument fails because the Supreme Court has never found that Congress intended for the NLRA

to occupy the “field” with respect to the regulation of labor concerns. See UAW, 325 F.3d at 364.

Indeed, the Court has emphasized that “the history of the labor pre-emption doctrine in this Court

does not support an approach which sweeps away state-court jurisdiction over conduct

traditionally subject to state regulation without careful consideration of the relative impact of such

a jurisdictional bar on the various interests affected.” Sears, Roebuck & Co. v. San Diego County

Dist. Council of Carpenters, 436 U.S. 180, 188 (1978). Though the Court in Sears was concerned

with preemption of state regulation, the quoted text underscores the point that Congress did not

intend for the NLRA to wholly occupy the field with respect to labor regulation and thereby

foreclose all other regulation of that area.

       Here, the President determined that a labor rights posting would further the federal

government’s interest in efficient and economical completion of government contracts and would

foster stability in the delivery of government-contracted services through reducing the risk of labor

unrest. See Exec. Order No. 13496, 74 Fed. Reg. at 6107. The court is aware of no authority, and

Plaintiffs have pointed to none, holding that the NLRA so occupies the field of labor law that an

agency of the federal government other than the NLRB cannot promote the government’s

proprietary interest in efficient and stable contracting through the posting of a labor rights notice.



                                                 26 
 
V.     CONCLUSION

       For the foregoing reasons, the court concludes that the Posting Rule does not violate the

First Amendment; the President had the authority under the Procurement Act to require the posting

of a notice as a condition of federal contracts; the Department of Labor’s Notice does not violate

the APA; and the Posting Rule is not preempted by the NLRA. Therefore, Plaintiffs’ Motion for

Summary Judgment is denied, while Defendants’ Motion for Summary Judgment is granted. A

separate order accompanies this Memorandum Opinion.

 



Dated: May 7, 2015                                          Amit P. Mehta
                                                            United States District Judge 




                                               27 
 
                     EMPLOYEE RIGHTS
                    UNDER THE NATIONAL LABOR RELATIONS ACT
    The NLRA guarantees the right of employees to organize and bargain collectively with their employers, and to engage in
    other protected concerted activity. Employees covered by the NLRA* are protected from certain types of employer and
    union misconduct. This Notice gives you general information about your rights, and about the obligations of employers
    and unions under the NLRA. Contact the National Labor Relations Board, the Federal agency that investigates and
    resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about
    specific rights that may apply in your particular workplace.

    Under the NLRA, you have the right to:
    • Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of
      employment.
    • Form, join or assist a union.
    • Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your
      wages, benefits, hours, and other working conditions.
    • Discuss your terms and conditions of employment or union organizing with your co-workers or a union.
    • Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related
      complaints directly with your employer or with a government agency, and seeking help from a union.
    • Strike and picket, depending on the purpose or means of the strike or the picketing.
    • Choose not to do any of these activities, including joining or remaining a member of a union.

Under the NLRA, it is illegal for your employer to:                 Under the NLRA, it is illegal for a union or for the union
• Prohibit you from soliciting for a union during non-work time,    that represents you in bargaining with your employer
  such as before or after work or during break times; or from       to:
  distributing union literature during non-work time, in non-work   • Threaten you that you will lose your job unless you
  areas, such as parking lots or break rooms.                           support the union.
• Question you about your union support or activities in a          • Refuse to process a grievance because you have
  manner that discourages you from engaging in that                     criticized union officials or because you are not a member
  activity.                                                             of the union.
• Fire, demote, or transfer you, or reduce your hours or            • Use or maintain discriminatory standards or procedures in
  change your shift, or otherwise take adverse action against           making job referrals from a hiring hall.
  you, or threaten to take any of these actions, because you        • Cause or attempt to cause an employer to discriminate
  join or support a union, or because you engage in concerted           against you because of your union-related activity.
  activity for mutual aid and protection, or because you choose
  not to engage in any such activity.                               • Take other adverse action against you based on whether
                                                                        you have joined or support the union.
• Threaten to close your workplace if workers choose a
  union to represent them.
                                                                    If you and your coworkers select a union to act as your
• Promise or grant promotions, pay raises, or other benefits        collective bargaining representative, your employer and the
  to discourage or encourage union support.                         union are required to bargain in good faith in a genuine
• Prohibit you from wearing union hats, buttons, t-shirts, and      effort to reach a written, binding agreement setting your
  pins in the workplace except under special circumstances.         terms and conditions of employment. The union is required
• Spy on or videotape peaceful union activities and                 to fairly represent you in bargaining and enforcing the
  gatherings or pretend to do so.                                   agreement.

Illegal conduct will not be permitted. If you believe your rights or the rights of others have been violated, you should
contact the NLRB promptly to protect your rights, generally within six months of the unlawful activity. You may inquire about
possible violations without your employer or anyone else being informed of the inquiry. Charges may be filed by any person
and need not be filed by the employee directly affected by the violation. The NLRB may order an employer to rehire a
worker fired in violation of the law and to pay lost wages and benefits, and may order an employer or union to cease violating
the law. Employees should seek assistance from the nearest regional NLRB office, which can be found on the Agency’s
website: www.nlrb.gov.

Click on the NLRB’s page titled “About Us,” which contains a link, “Locating Our Offices.” You can also contact the NLRB by
calling toll-free: 1-866-667-NLRB (6572) or (TTY) 1-866-315-NLRB (6572) for hearing impaired.
*
 The National Labor Relations Act covers most private-sector employers. Excluded from coverage under the NLRA
are public-sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or
spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors (although supervisors that
have been discriminated against for refusing to violate the NLRA may be covered).




    This is an official Government Notice
    and must not be defaced by anyone.                                                              U.S. Department of Labor
