During the last several years, the National Labor Relations Board has taken an increasingly active stance in promoting unions and union organizing efforts. Yesterday, the U.S. Court of Appeals for the District of Columbia struck down one of the NLRB’s more recent efforts, which required employers to post pro-union posters in the workplace.
In August 2011 the NLRB issued a regulation requiring most employers — both union and non-union — to post on their properties and on employer websites a notice titled “Notification of Employee Rights Under the National Labor Relations Act.” In a nutshell, the notice encouraged employees to form and join unions and included the NLRB’s contact information. According to the regulation, employers would be required to post the pro-union notice in conspicuous workplace locations and intranet or internet sites, presumably alongside other required posters, such as those addressing minimum wage, non-discrimination, workers’ compensation and the like.
The National Association of Manufacturers and the U. S. Chamber of Commerce challenged this far-reaching requirement. On May 7, 2013, a federal Court of Appeals ruled the NLRB’s regulation requiring the pro-union poster was unlawful. The National Labor Relations Act protects an employer’s First Amendment Right of free speech. That includes the right of employers to discuss with employees the reasons why an employer believes bringing a union into the workplace is a bad idea. The court decided that a regulation requiring employers to post a pro-union notice at work violated employers’ First Amendment rights, and the regulation was struck down.
This is not the last word in pro-union efforts by the NLRB. Undoubtedly, the NLRB will appeal this particular court decision, and more pro-union regulations are likely to be issued in the future. As always, we will keep you advised.