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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 appearance.

W. James Young was on the brief for amicus curiae

National Right to Work Legal Defense & Education Foundation, 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 government 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 ‘‘Procurement 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. Finding 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. Wisconsin 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, preemption 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 setting, 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 employer 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 prohibited. 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 protects 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, Hillsborough 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 position 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 preemption,’’ the court ‘‘must defer to the Board, and only if the

Board decides that the conduct is not protected or prohibited,’’ 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 prohibited. 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 evidence 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 Garmon 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 practice’’) 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 ambiguously 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 employers’ 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 replacements, 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 permanent 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 Commerce 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 preemption 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 ‘‘arguable’’ 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 provisions 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 government 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 requirements to economy and efficiency as follows:

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 facili-
10

tates the efficient and economical completion of its procurement 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 Congress’ ‘‘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 pervasive and its regulation complex’’ in this area, Amalgamated

Association of Street, Electric Railway & Motor Coach Employees 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 unionsecurity 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 preemption 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 under 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 obligation.’’ 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 Commerce, 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 position 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 established, 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 protected 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 Supreme 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 wideopen 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 reasoning 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 requirements 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.