On May 7, 2013, the United States Court of Appeals for the D.C. Circuit struck down the National Labor Relations Board’s (NLRB) “notice-posting rule,” requiring employers to display in a “conspicuous” place in the workplace an 11-by-17-inch poster that informs workers of their rights under the National Labor Relations Act (NLRA), including the right to form or join a union.  Reversing in relevant part the decision of the district court, the D.C. Circuit found the rule unenforceable on the ground that the NLRB lacks authority to make and enforce the rule under federal labor law.  

A three-judge panel of the D.C. Circuit ruled that the Board violated employers’ free speech rights guaranteed under Section 8(c) of the NLRA by trying to force them to display the poster or else face unfair labor practice charges.  Specifically, Section 8(c) of the Act provides that an employer’s expression of “any views, argument, or opinion [about unionization], or the dissemination thereof” cannot constitute an unfair labor practice as long as “such expression contains no threat of reprisal or force or promise of benefit.”  Judge A. Raymond Randolph, who wrote the decision for the D.C. Circuit, wrote that “[a]lthough § 8(c) precludes the Board from finding noncoercive speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board’s rule does both.” 

The court acknowledged that an employer’s right to speak freely includes within it the choice to refrain from speaking at all, as well as the right to avoid “compelled speech.”  Judge Randolph suggested that the rule was a violation of an employer’s free speech rights under the NLRA because the government “selected the message and ordered its citizens to convey that message.”  The court concluded that the NLRB overstepped its authority when it mandated that businesses post a notice in the workplace and on company websites that speaks of employees’ right to form and join unions, to protest working conditions and to be free from retaliation for exercising those rights, but that business groups saw as too one-sided in favor unionization because it fails to notify employees of other labor law rights, such as the right 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.  Thus, the court held that the NLRA protects the rights of employers not to publish the Board’s poster if they find the language in it objectionable. 

The court also addressed and rejected the portion of the NLRB’s rule that provided that the six-month statute of limitations period for filing unfair labor practice charges under Section 10(b) of the Act can be tolled by an employer’s failure to post the notice.  Noting that Section 10(b) was added by Congress in 1947 and that the doctrine of “equitable tolling” must be rooted in Congressional intent, the court concluded:

The short of the matter is that the Board has not invoked any authority suggesting that the 1947 Congress intended to allow § 10(b) to be modified in the manner of the Board’s tolling rule.  Whether one frames the Board’s tolling rule as resting on the employer’s failure to post the Board’s notice or on the charging employee’s lack of knowledge of his rights under the National Labor Relations Act, the Board marshaled nothing to show that by 1947 this was a generally accepted basis for tolling limitations periods.

Accordingly, the three-judge panel vacated the NLRB’s notice-posting rule in its entirety.

The posting rule that would have impacted approximately 6 million private employers was drafted by the NLRB in 2010, published in August 2011, and scheduled for implementation on November 2011.  It was delayed until April 30, 2012, due to pending litigation and then postponed indefinitely pending the outcome of the appeal before the D.C. Circuit.  As a result, most employers have never posted the poster. 

Given the NLRB’s recent willingness to litigate labor issues, it can be expected that the NLRB will seek review of the D.C. Circuit’s ruling on the posting requirement by the U.S. Supreme Court.  In addition, an appeal of a separate case regarding the NLRB’s posting rule is currently pending in the Fourth Circuit.  In that case, the NLRB has appealed an April 2012 ruling of a federal trial judge in South Carolina that also concluded that the NLRB lacked authority to promulgate the notice posting rule.  Should the Fourth Circuit reverse the South Carolina district court’s decision and find in favor of the NLRB, such a ruling would create a split in the Circuits, making it even more likely that the NLRB will seek Supreme Court review of these issues.  Stayed tuned, as we will continue to provide regular updates on employers’ obligations regarding the notice-posting rule.