IRS says its new bulletin board policy makes NTEU's lawsuit over confiscated union flyers moot. NTEU says it's getting mixed signals from the agency's own facilities office and isn't ready to drop the case.
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The Internal Revenue Service says a new policy governing what materials may posted in communal office spaces like bulletin boards clears the agency of accusations that it violated employees’ First Amendment rights when it began confiscating flyers and decorations supportive of the National Treasury Employees Union.But attorneys representing the union said they’ve thus far received mixed messages as to whether the new policy would adequately address the concerns underlying a federal lawsuit stemming from the initial May directive.On May 29, IRS issued a directive, purportedly stemming from President Trump’s 2025 executive order banning collective bargaining at many agencies, instructing its facilities management employees to remove “any and all NTEU materials” in IRS facilities using “whatever steps necessary,” short of vandalism. A federal lawsuit the following month documented instances in which NTEU flyers and decorations were taken from communal bulletin boards, stolen from employees’ cubicles and, in several cases, destroyed.In late June, the IRS and NTEU jointly filed a stipulation to the court, announcing that agency management agreed to halt its campaign and return any union materials that had been confiscated but not yet destroyed.In a new filing last week, IRS informed the court that it had promulgated a new policy, this time stating that only “agency-sponsored materials” and non-agency documents mandated by law, such as Occupational Safety and Health Administration notices, may be permitted in communal spaces such as bulletin boards. Employees may still decorate their workspace as they wish, provided they are consistent with federal ethics, equal employment opportunity and other existing IRS rules.“[Facilities Management and Security Services] retains exclusive authority over posting and displays of materials in common areas or on designated bulletin boards of IRS facilities, and will only authorize agency-sponsored materials, with the exception of non-agency materials mandated by law,” the August 4 memo states. “Employees are not authorized to post written materials in IRS facilities.”As part of its filing, IRS asked the union if it would entertain dismissing the portion of its lawsuit against the agency stemming from the materials confiscation policy as “moot,” noting that policies governing speech are generally not considered First Amendment violations if they are “content neutral.”NTEU, in its response filed Monday, said it needs more information as it has received “conflicted information” about the new policy and its implementation.“The language of the August 4 policy says, for example, that the only materials that may be posted in IRS workplace common areas are ‘agency-sponsored materials,’ which the IRS interprets as ‘materials created at the behest of the IRS and for the purpose of IRS business,’” the union wrote. “But the IRS’ Facilities Management and Security Services is posting notices telling employees, in contrast to the August 4 policy, that it may approve ‘non-agency-sponsored materials for display in common areas’ . . . NTEU might challenge this policy if it believes that it is merely a façade for viewpoint-based discrimination.”But even if the new policy does assuage NTEU’s concerns, that would not be the end of the legal challenge. That’s because last month, the union amended its complaint to include additional alleged First Amendment violations, this time in the form of a content filter blocking access to the union’s website from agency computers.If someone tries to access NTEU.org from an agency work station, a splash screen appears warning that the site has been flagged for “potentially damaging content,” for which the ban has “very limited or no exceptions.”According to the IRS’ IT regulations, employees are barred from accessing pornography, “personal services” like online dating or most social media, hacking websites, online games, “proxy avoidance” sites and filesharing. One IRS employee told Government Executive the web filter typically lists one of those six categories when blocking a website; conversely, they had never seen the “potentially damaging” category before.Also unusual was language suggesting that the restrictions would have “very limited or no exceptions,” the employee said. In most cases, IRS has a process by which employees may request an exception to access a website that has been blocked for a business need, such as for an audit or other investigation.According to the amended complaint, the agency has also gone so far as to block all emails originating from the nteu.org domain. This has had damaging ramifications for employees involved in EEO cases and appeals before the Merit Systems Protection Board, the union said.“When one NTEU attorney who had filed an MSPB case on behalf of an IRS employee engaged in settlement discussions over the phone with the agency attorney, the agency attorney told him that she would email him a document,” the complaint states. “After a day or two, however, the NTEU attorney had not received the document, even though the agency attorney insisted that she sent it. After another few days, the NTEU attorney told that agency attorney that he would go to the MSPB judge if he continued to not receive the document. Then, another day or two later, he was able to send emails to and receive them from the agency attorney.”Ultimately, the IRS unblocked emails associated with NTEU for managers, HR personnel and some attorneys at the agency, it left it in place for members of the bargaining unit.
