D.C. Circuit Holds NLRB May Not Compel Employers To Post “Notice Of Employee Rights Under The NLRA”

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On May 7, 2013 the D.C. Circuit found a rule promulgated by the National Labor Relations Board that would have required all employers to post an NLRB mandated “Notice of Employee Rights” to be invalid.

The NLRB’s Rule and Challenge to the Rule

As we explained in more detail in an earlier Eupdate, in 2011, the NLRB promulgated a rule that required employers to post a “Notice of Employee Rights Under the NLRA” which included detailed information on the right of employees to organize and to engage in protected concerted activity in furtherance of that right but included only one line advising that employees had the right to refrain from engaging in any such activities. An employer that did not post the notice could be charged with an unfair labor practice, impliedly interfering with employees’ Section 7 rights.  In addition, the 6 month statute of limitations for any unfair labor practice could be suspended during any period when the notice was not posted and the NLRB could also use the failure to post as evidence of an employer’s unlawful motive in an unfair labor practice proceeding.

The Rule was challenged in a lawsuit filed in the U. S. District Court for the District of Columbia by the National Association of Manufacturers and the U.S. Chamber of Commerce.  The district court found only part of the rule to be invalid but upheld the rule otherwise.  The D.C. Circuit enjoined enforcement of the rule pending the the NLRB’s appeal.

The D.C. Circuit’s Decision

The D.C. Circuit, in National Association of Manufacturers v. NLRB, found the NLRB’s rule to be invalid.  The court concluded that Section 8(c) of the NLRA, which provides employers with a free speech right in labor matters, was violated by compelling companies to post a message against their wishes. The Board argued that it was the NLRB’s speech (which the Board deemed to be “non-ideological”), and not the employer’s speech that the posting represented, and as such, did not constitute compelled employer speech.  The Board further stated that an employer that disagreed with the message could “noncoercively” provide employees with its own view.  The court rejected these contentions, finding that compelling the employer to post a message and then requiring the employer to rebut the message – on pain of being charged with an unfair labor practice – intruded on employer rights under 8(c).  The court also found that the Board had no authority to implement a blanket rule suspending the running of the statute of limitations, which Congress had set at 6 months.

Practical Impact of the Ruling

Employers should be pleased to find that the NLRB’s attempts to change labor law by rulemaking have been rejected.