On May 7, 2013, the United States Court of Appeals for the District of Columbia Circuit struck down the National Labor Relations Board ("NLRB") rule that would require employers to display posters about workers' rights to engage in concerted activity. The D.C. Circuit's decision, National Association of Manufacturers, et al. v. National Labor Relations Board, comes as welcome news to employers.
On August 30, 2011, the NLRB published a final rule nearly two
decades in the making, providing that "[a]ll employers subject
to the NLRA must post notices to employees, in conspicuous places,
informing them of their NLRA rights, together with Board contact
information and information concerning basic enforcement procedures
. . . ." The rule provides its own enforcement mechanisms,
declaring that:
(1) An employer's failure to post the notice is an unfair labor
practice,
(2) The NLRB may suspend the six-month statute of limitations
period for filing unfair labor practice charges when employers do
not comply with the posting requirement, and
(3) The NLRB may consider an employer's knowing and willful
refusal to post the notice as evidence of unlawful motive in a case
where motive is an issue.
In response to the proposed rule, business organizations sued,
claiming that it violated the NLRA and the First Amendment. The
United States District Court for the District of Columbia upheld
the rule but struck down the enforcement provisions that would have
permitted the NLRB to consider the failure to post the notice to be
an unfair labor practice and that would have allowed the NLRB to
suspend the statute of limitations period for filing a
charge.
On appeal, the D.C. Circuit struck down the rule in its entirety,
holding that it conflicted with a provision of the NLRA protecting
employers' speech. Specifically, the Court relied on Section
8(c) of the NLRA, which permits employers "to engage in
noncoerceive speech about unionization." The Court reasoned
that if Section 8(c) prevents the NLRB from charging an employer
with an unfair labor practice for posting notices about
employees' right not to join a union, which it clearly
does, "[h]ow then can it be an unfair labor practice for an
employer to refuse to post a government notice informing employees
of their right to unionize (or to refuse to)?" For this
reason, the Court found that two of the enforcement provisions,
those creating an independent unfair labor practice for failing to
display the poster and treating any violation of the rule as
evidence of unlawful motive, violated Section 8(c). The Court also
struck down the rule's statute of limitations enforcement
provision, finding that an NLRB rule modifying the NLRA's
statute of limitations exceeded the NLRB's statutory authority.
Once the D.C. Circuit struck down all of the rule's enforcement
provisions, it found that the rule's underlying posting
requirement could not survive.
Although the D.C. Circuit's decision is good news for
employers, the NLRB's rule may not be officially dead. A
parallel case is currently on appeal before the Fourth Circuit.
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