NLRB’s Union Poster Rule Struck Down By D.C. Circuit

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On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit vacated the rule adopted by the National Labor Relations Board (the Board) that required most private sector employers to display on their properties and websites a large poster notifying employees of their rights under the National Labor Relations Act (the Act) and declared that the failure to do so would be an unfair labor practice.  Nat'l Ass'n of Mfrs. v. NLRB, __ F.3d __, Nos. 12-5086, 12-5183, 2013 WL 1876234 (D.C. Cir. May 7, 2013).   

Relying on Section 8(c) of the Act, which states that the “expressing” or “dissemination” of any views “shall not constitute or be evidence of an unfair labor practice . . ., if such expression contains no threat of reprisal or force or promise of benefit,” the court held that the Board’s poster rule violates employers’ rights to engage in noncoercive speech, including the right to refrain from speaking at all.  “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 therefore concluded that the rule violates Section 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 in other unfair labor practice charges in which motive is an issue.   

The court also invalidated the rule’s tolling provision.  The tolling provision suspended the running of the six-month limitations period for filing an unfair labor practice charge if an employer failed to post the employee notice.  The court noted that the Board had not invoked any authority suggesting that Congress intended to allow the limitations period to be modified in the manner attempted by the Board.   

Because the rule was invalidated under Section 8(c), the majority opinion did not analyze whether the Board has the authority to adopt a poster rule.  The concurring opinion, however, concluded that the poster rule did not constitute a valid exercise of the Board’s authority because the rule is not necessary to carry out the express provisions of the Act.  The Act, and Section 6 in particular, “simply does not authorize the Board to impose on an employer a freestanding obligation to educate its employees on the fine points of labor relations law.”  Those concurring two judges believed that, given the remedial nature of the Act, Congress did not intend to authorize a regulation so “aggressively prophylactic as the posting rule.” 

The D.C. Circuit also addressed whether the Board had the authority to act in light of the Noel Canning decision, which invalidated President Obama’s January 2012 recess appointments to the Board.  The court held that, even if Noel Canning applied, the Board still had enough members to act when the poster rule was filed with the Office of the Federal Register.