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Executive Summary: The D.C. Circuit Court of Appeals has vacated the National Labor Relations Board's rule requiring employers to post a Notice of Employee Rights under the NLRA because it violates employers' free speech rights. See National Ass'n of Manufacturers v. NLRB (May 7, 2013). The court also found invalid the rule's provision permitting tolling of the statute of limitations for an unfair labor practice if the employer failed to post the Notice.
Notice Posting Rule
The rule requires all employers covered by the National Labor Relations Act (NLRA) to post a Notice of Employee Rights explaining employees' rights under the Act and states that an employer's failure to post the Notice is an unfair labor practice. The rule also provides that the Board may consider an employer's failure to post the Notice as evidence of unlawful motive in an unfair labor practice case. Additionally, the rule states that the Board may suspend the six-month statute of limitations for filing an unfair labor practice charge if an employer has failed to post the Notice.
The Court's Decision
The Court of Appeals did not rule on whether the Board had the authority to issue the rule, but instead focused on the enforcement provisions. The court began its analysis by examining § 8(c) of the Act, which protects employers' noncoercive speech. The court noted that this provision was enacted not only to protect employers' free speech rights under the First Amendment, but also specifically to allow employers to present an alternative view and information on unionization that a union would not present. The court held that the rule violates § 8(c) because, "Although § 8(c) precludes the Board from finding noncoercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board's rule does both."
The court also noted that the First Amendment protects speech and the dissemination of messages created by others as well as the right to refrain from speaking and disseminating others' messages. The court held that § 8(c) incorporates these principles, "Like the freedom of speech guaranteed in the First Amendment, § 8(c) necessarily protects—as against the Board . . . —the right of employers (and unions) not to speak." The court held that the Board cannot compel employers to express the Board's views as stated in the Notice merely because it has regulatory authority over them. Thus, the court found that the rule violates employers' free speech rights as protected by the First Amendment and § 8(c) because it makes an employer's failure to post the Board's Notice an unfair labor practice and because it treats such a failure as evidence of anti-union animus.
The court also held that the provision of the rule tolling the statute of limitations in an unfair labor practice case if an employer failed to post the Notice violates § 10(b) of the Act, which requires unfair labor practice charges to be filed within six months of the unfair practice. The court found no evidence that Congress intended to allow § 10(b)'s statute of limitations to be modified in this manner.
The court then determined that the Board would not have published the rule depending on voluntary compliance because it rejected that option in the preamble to its final rule. Accordingly, the court held that the entire rule must fall since its enforcement provisions are invalid.
Although court did not rule on whether the Board had authority to issue the rule under § 6 of the Act, the concurring opinion stated that the rule was not a valid exercise of the Board's § 6 authority.
Employers' Bottom Line:
The court's decision is helpful to employers because it reiterates employers' free speech rights under the NLRA and because it recognizes limits on the Board's authority. The Board has not indicated whether it will seek Supreme Court review of the court's decision; however, employers currently are not required to post the Notice of Employee Rights.
If you have any questions regarding the court's decision or other labor or employment related issues, please contact the FordHarrison attorney with whom you usually work.
Topics: First Amendment, Free Speech, NLRA, NLRB, Posting Requirements
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