U.S. Court of Appeals for the D.C. Circuit Vacates NLRB Notice Posting Rule

On August 30, 2011 the National Labor Relations Board (Board) issued a rule requiring employers covered by the National Labor Relations Act (Act) to post a Notice of Employee Rights explaining employee rights under the Act and declaring that employers who failed to do so were guilty of engaging in an unfair labor practice. The rule was immediately challenged by multiple employer groups and the effective date was put on hold pending the outcome of the various legal challenges.
While the required Notice does inform employees of many of their rights under the Act, the Plaintiffs in National Ass’n of Manufacturers v. NLRB, an association that represents small and large manufacturers and a foundation that advocates for employees against coercive union practices, specifically took issue with the Notice’s failure “to notify employees, inter alia, of their rights to decertify a union, to refuse to pay dues to a union in a right-to-work state, and to object to payment of dues in excess of the amounts required for representational purposes.”

On May 7, 2013, the U.S. Court of Appeals for the D.C. Circuit held that the Board’s rule is invalid on the basis that it violates employers’ First Amendment rights regarding free speech.
The court focused much of its analysis on § 8(c) of the Act, which precludes regulation of speech about unionization provided that the communications are not coercive. The court specifically stated that “[a]lthough § 8(c) precludes the Board from finding noncoercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board’s rule does both.” The court further noted that, while the communications contained in the required Notice contain the speech of the Board and not the employer, § 8(c) and the First Amendment also protect an employers’ right not to disseminate the speech of another.

Finally, the court examined the provision of the Board’s rule tolling the statute of limitations in an unfair labor practice case where an employer fails to post the Notice. The court determined that the provision violates § 10(b) of the Act which requires unfair labor practice charges to be filed within six months of the alleged unlawful event.

For these reasons, the court held that the Board’s posting rule is vacated.

It is possible that the Board will appeal this decision to the U.S. Supreme Court but, at least for now, employers are not required to post the Notice of Employee Rights.

However, non-exempt federal contractors and subcontractors should note that Executive Order 13496, implemented in 2010 by the Department of Labor, requiring the posting of a notice informing employees of their rights under the Act was not affected by the court’s decision discussed above. The Order’s posting requirement is similar but separate from that of the Board’s and employers subject to the Order should not discontinue posting the notice of employee rights required by it.