Earlier this month, in Nat'l Ass'n of Mfrs. v. Nat'l Labor Relations Bd., No. 12-5068 (D.C. Cir. 2013) the United States Court of Appeals for the D.C. Circuit struck down a National Labor Relations Board Rule that required all employers covered by the National Labor Relations Act ("NLRA") to post on their properties and website a notice informing employees of their rights under the NLRA to unionize, picket, and engage in collective bargaining (the "Rule"). Importantly, the Rule declared that (i) an employer's failure to post the notice was an unfair labor practice and (ii) the Board could consider an employer's failure to comply with the Rule as evidence of unlawful motive in a case in which motive was an issue. The Rule also allowed an employee to toll the accrual of the six-month statute of limitations period for an unfair labor practice claim if the employer failed to post the notice.
The Court began its evaluation by analyzing the controlling provision of the NLRA, Section 8(c). The Court explained that Section 8(c) protects the expression "of any views, argument or opinion, or dissemination thereof, whether in written, printed, graphic, or visual form" from being an unfair labor practice or being evidence of an unfair labor practice as long as the speech "contain[ed] no threat of reprisal or force or promise of benefit." Additionally, the Court explained that Section 8(c) "expressly precludes regulation of speech about unionization so long as the communications do not contain a threat of reprisal or force or promise of benefit." In essence, Section 8(c) "not only protects the right of free speech under the First Amendment, but also serves a labor law function of allowing employers to present an alternative view and information that a union would not present."
After reviewing the purpose of Section 8(c), the Court determined that because the Rule attempted to regulate non-coercive speech about unionization, and classified an employer's failure to post the pro-union notice as an unfair labor practice and potential evidence of an unlawful anti-union animus, the Rule violated Section 8(c) and could not stand. Additionally, the Court held that the portion of the Rule tolling the statute of limitations when an employer did not post the notice was beyond the NLRB's authority and was also prohibited.
While this decision was rendered in the District of Columbia, it is significant for employers as it evidences the federal court's willingness to push back on the scope of the NLRB's authority and rule making powers. Similarly, the Court's invalidation of the Rule's statute of limitation tolling provision may prove useful in other forums as it provides a platform to suggest that tolling of an employee's claims is not automatic. Although this decision is a positive development for employers, this area of law is still in flux. It is unclear whether the NLRB may seek appeal before the United States Supreme Court and this issue has not yet reached a New Jersey federal or state court. We would recommend that you continue to monitor this issue closely with your counsel as the law develops.