On May 7, 2013, in Nat’l Ass’n of Mfrs. v. NLRB, the D.C. Circuit struck down the National Labor Relations Board’s (“NLRB”) rule that required all six million private employers to post notices titled “Notification of Employee Rights” in the workplace.  

For more than 70 years, the NLRB has required employers found to have committed unfair labor practices to post a remedial notice informing employees of the employer's obligation to correct conduct found by the Board to be unlawful. These notices typically included a recitation of employee/union rights protected by the National Labor Relations Act  (“NLRA” or “Act”) and a commitment by the employer to remedy the specific conduct found by the Board to violate the National Labor Relations Act. 

In August 2011, as part of the NLRB's efforts to expand its influence over non-unionized workplaces, the NLRB adopted a rule requiring all private employers to post a notice of employee/union rights under the Act without regard for whether the employer had committed unfair labor practices.  The NLRB claimed that the rule was proper and necessary because employees in today’s working environment needed to be aware of their rights in order to enforce them.  The NLRB put teeth in the rule by providing three new penalties against an employer who failed to post the required notice:  

  1. An employer’s failure to post the notice would be considered an unfair labor practice; 
  2. the NLRB would suspend the running of the six-month limitations period for filing unfair labor practice charges during times when the notice was not posted; 
  3. the NLRB would consider an employer’s “knowing and willful refusal to comply with the requirement to post the employee notice as evidence of unlawful motive in a case in which motive is an issue,” thereby allowing the NLRB to find another violation of the NLRA.

Although the NLRB claimed that it was authorized to promulgate the rule under Section 6 of the NLRA, the court analyzed the rule under Section 8(c) of the Act, which provides: 

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice act under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.  

The court held that the rule allowed the NLRB to find “non-coercive employer speech to be an unfair labor practice [and] evidence of an unfair labor practice,” both of which are prohibited under Section 8(c) of the Act.  The court reached this conclusion by first discussing First Amendment law and reinforcing that the First Amendment includes both the right to speak and the right not to speak.   The court held that by forcing employers to post the notice, the NLRB was forcing the employer to communicate the message in the NLRB’s poster.  Under this reasoning, the court struck down the first and third enforcement mechanisms under Section 8(c).  

With respect to the last enforcement mechanism – that the period to file an unfair labor practice charge would be tolled if the employer failed to post the notice – the court held that the NLRB failed to invoke authority suggesting that Congress intended to allow the tolling period set forth in Section 10(b) to be modified in the manner set forth in the rule.  

The court did not reach the question of whether the NLRB had the regulatory authority to require employers to post the notice because the court found that each of the rule’s three enforcement mechanisms were invalid.  The court concluded that the NLRB would not have adopted the rule without any means to enforce it and therefore the enforceability provisions were not severable from the rule.