Stop the Presses! NLRB Poster Rule Invalidated By DC Circuit Court of Appeals

As previously reported, in August 2011 the National Labor Relations Board (“NLRB”) adopted a rule that required most private-sector employers to notify employees of their rights under the National Labor Relations Act by posting a notice where other employee notices are customarily posted, including on the employer’s website.  An employer’s failure to do so would be considered an unfair labor practice. 

The rule was scheduled to go into effect on April 30, 2012, having been postponed several times already.  In light of several court rulings last year, the April 30th implementation of the rule was temporary enjoined until the legal issues were resolved.  On May 7, 2013, the legal issues were “resolved” when the D.C. Circuit Court of Appeals vacated the rule.  Analyzing the issue under section 8(c) of the National Labor Relations Act, which provides that “[t]he expressing of any views, argument, or opinion, or the dissemination thereof, … shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act …, if such expression contains no threat of reprisal or force or promise of benefit,” the Court held:

Suppose that § 8(c) prevents the Board from charging an employer with an unfair labor practice for posting a notice advising employees of their right not to join a union. Of course § 8(c) clearly does this. How 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)? 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.

We don’t know if the NLRB will appeal the D.C. Circuit’s ruling.  Other legal challenges to the rule are currently pending.  In 2012, the United States District Court for the District of South Carolina ruled that the NLRB lacked the authority to promulgate the rule.  Chamber of Commerce of the U.S. v. NLRB, 856 F. Supp. 2d 778 (D.S.C. 2012). The appeal in that case is now pending before the Fourth Circuit.

We’ll keep you posted…

Natasha Baker

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