Many would contend that inherent in the freedom of speech is the freedom to decide when not to speak such that the government, as the argument goes, cannot compel one to say or otherwise disseminate certain information. The United States District Court for the District of Columbia Circuit appears to have agreed with this premise by recently striking down the National Labor Relations Board’s (NLRB) “poster rule” that would have required millions of employers to post notices listing employees’ rights to form, join, or assist a union, bargain collectively, and various other rights they have under the National Labor Relations Act (NLRA). The rule provided that an employer’s failure to post the notice would be deemed an unfair labor practice under Section 8(a)(1) of the NLRA, as well as suspend the six-month limitations period for filing any unfair labor practice charge under Section 10(b) of the NLRA, and could further be considered evidence of unlawful motive in a case where motive is relevant.

The D.C. Circuit held that by deeming the failure to post the notice to be an unfair labor practice and evidence of unlawful motive, the rule violated Section 8(c) of the NLRA, which protects the expression “of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form” from constituting or being evidence of an unfair labor practice under any provisions of the NLRA, so long as the expression is non-coercive (i.e., contains no threat of reprisal or force or promise of benefit). Comparing the protection of Section 8(c) to the law established under the free speech protections of the First Amendment to the U.S. Constitution, the appellate court concluded that Section 8(c)’s protection of an employer’s right to engage in non-coercive speech about unionization includes the right not to speak, or to be compelled to disseminate a message from the government that violates those rights.

In addition to striking the NLRB’s controversial poster rule, the decision also added the following points of interest:

  • The court ruled that the NLRB had no authority to amend the statute of limitations established by Congress in Section 10(b) of the NLRA for the filing of an unfair labor practice charge.
  • In a concurring opinion, two of the justices concluded that the rule also was not a valid exercise of the NLRB’s rulemaking authority under Section 6 of the NLRA because the rule was not, as required by Section 6, “necessary” to carry out the express provisions of the NLRA.
  • The court initially addressed whether there was a problem with the rule because at the time the rule was published on August 30, 2011, the NLRB was without a quorum under the D.C. Circuit’s blockbuster decision in Noel Canning v. NLRB, finding that President Obama’s January 2012 recess appointments to the NLRB were invalid. The court concluded that the rule was not invalidated under its Noel Canning decision because at the time rule was filed with the Office of the Federal Register — which is the relevant time at which a rule’s promulgation takes place — the NLRB still had a valid quorum.
  • The question of the poster rule’s validity also is currently pending in an appeal before the Fourth Circuit. In that case, the district court ruled that the NLRB’s poster rule was invalid.

The D.C. Circuit’s decision is positive news for employers who wish to state their own views regarding unionization and be free from compulsion to communicate messages suggesting support for organized labor. However, it’s important to note that the D.C. Circuit’s ruling does not eliminate the requirement that federal contractors and subcontractors provide notice to employees of their rights under the NLRA, which employers agree to as a term of receiving a federal contract.

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