Court Strikes Down NLRB Union Poster

On Tuesday, May 7, 2013, in Nat'l Association of Manufacturers v. NLRB, 2013 WL 1876234 (D.C. Cir.), the United States Court of Appeals for the District of Columbia struck down the National Labor Relations Board's ("NLRB") rule requiring employers to post a notice regarding employees' rights under the National Labor Relations Act ("Act"). The posting rule required all employers covered by the Act to post a notice in a conspicuous place informing employees of their rights to organize and engage in protected activity.

Last year, the district court determined that the NLRB had the authority to issue a rule but concluded that the NLRB had exceeded that authority in two respects – by conclusively treating a failure to post the notice as an unfair labor practice and by tolling the statute of limitations against employers who failed to post the notice. Please see our previous alert on this subject here (“Court Upholds NLRB's Right to Require Employer Posting” – March 8, 2012).

On appeal, the court invalidated the rule, but for different reasons. The court relied on Section 8(c) of the Act. Section 8(c) allows employers to engage in non-coercive speech regarding unions. The court determined that Section 8(c) protects employers who desire to stay silent on the issue of unions. Therefore, the court held that the rule was invalid because it mandated that employers engage in speech by posting the notice (two of the three judges also concluded that the NLRB lacked the authority to issue the rule).

Separately, the validity of the NLRB’s authority to require employers to post the notice also is still pending before the Court of Appeals for the Fourth Circuit. For the time being, however, this recent decision means that employers are not required to post the NLRB notice.