The U.S. Court of Appeals for the District of Columbia Circuit has issued another decision applauded by many employers. On May 7, 2013, the Court determined that the National Labor Relations Board's (NLRB) rule mandating employers to display posters about employee rights under the National Labor Relations Act (NLRA) is invalid. (Nat'l Ass'n of Mfrs v. NLRB, Nos. 12-5068 and 12-5138)
The controversial rule was passed in August 2011 and slated to go into effect last year, but was put on hold pending appeal. Under the rule, employers were required to post notices "in conspicuous places, informing [employees] of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures." (The poster failed to mention employees' rights to decertify a union, not to pay union dues in right-to-work states and to object to dues unrelated to representation - the NLRB claimed it was entitled to "editorial judgment.") The rule also had stiff consequences for non-compliance. Failure to post the notice would: in and of itself, be deemed an unfair labor practice (ULP); be considered evidence of unlawful motive in any other ULP charge; and result in the tolling of the six-month statute of limitations for filing ULP charges. The NLRB believed the rule was necessary because "employees were not aware of their rights under the [NLRA]." Specifically, the NLRB cited the fact that only a small portion of the private workforce is unionized and the workforce is increasingly comprised of immigrants and those coming out of high school who are ignorant of their rights under the NLRA.
The Court was not persuaded by the NLRB's arguments. The Court noted that the First Amendment and Section 8(c) of the NLRA permits employers to freely communicate with employees about unionization so long as that speech doesn't contain any threats or promise of any benefit. In addition, the law allows employers to remain silent on the topic altogether at their discretion. However, under the NLRB's rule, "the government selected the message and ordered its citizens to convey that message" and then assessed penalties for non-compliance. The court made it very clear that such a mandate is unlawful.
The NLRB has yet to issue a statement related to this latest defeat, therefore, it is unknown whether this decision will make its way to the U.S. Supreme Court.