On Tuesday, May 7, 2013, the United States Court of Appeals for the District of Columbia Circuit struck down the National Labor Relation Board's controversial rule requiring employers to display posters advising employees of their right to unionize under federal labor law.
In National Ass'n of Manufacturers v. NLRB, the Court found that the NLRB's rule violated Section 8(c) of the National Labor Relations Act (the "Act"), which states that the expression of views cannot constitute an unfair labor practice as long as the speech contains no threats or promises of benefits. In the Court's words:
Suppose that Section 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 Section 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 refuse to)?
The Court held that because the NLRB rule made the employer's failure to post the notice an unfair labor practice and treated such a failure as evidence of anti-union animus in other unfair labor practice cases, it violated Section 8(c) of the Act and could not stand.
A concurring opinion, written by the second judge on the three-judge panel and joined by the third, held that the NLRB rule was not valid under Section 6 of the Act, which provides that the "Board shall have authority from time to time to make, amend and rescind...such rules and regulations as may be necessary to carry out the provisions of this subchapter." The concurrence held that, "The NLRB - and Section 6 in particular - simply does not authorize the Board to impose on an employer a freestanding obligation to educate its employees on the fine points of labor relations law."
The National Ass'n case is one of two appeals filed over the NLRB rule. The other appeal pending, before the Fourth Circuit, was argued on March 19, 2013. The NLRB has stated that it will not implement the rule unless the Fourth Circuit or Supreme Court holds that the rule is valid.