Yesterday, the United States Court of Appeals for the D.C. Circuit held that the National Labor Relations Board (NLRB) rule requiring employers to post notices regarding employees’ right to unionize was invalid.
Many of you will recall that back in 2011, the NLRB issued a rule requiring nearly all private employers (union or non-union) to post an NLRB-designated notice informing employees of their right to unionize under Section 7 of the National Labor Relations Act (NLRA). This requirement was held to be invalid by a South Carolina federal district court last year, and the NLRB has been prevented from implementing this rule pending the outcome of that appeal, which currently is pending in the Fourth Circuit Court of Appeals. [Click here to see our April 16, 2012 alert concerning that decision.]
In yesterday’s decision, National Association of Manufacturers v. N.L.R.B., the D.C. Circuit also held that the NLRB could not through its rulemaking authority require employers to post this notice. The court reasoned that employers have a constitutional right to engage in speech about unionization, provided that it is not coercive or threatening. This First Amendment right is echoed in Section 8(c) of the NLRA, which precludes the NLRB from finding such non-coercive speech to be an unfair labor practice or evidence of an unfair labor practice. The court held that these rights include the right to decide not to disseminate such speech, and, therefore, the NLRB could not require employers to post right-to-unionize notices.
It is anticipated that the NLRB will appeal this decision to the U.S. Supreme Court. But, for now, you can keep the NLRB “Notice of Rights” poster resting comfortably in a file drawer. (Note that federal contractors are still required to post a similar Department of Labor “Notice of Rights” poster which was issued by that agency back in May of 2010.)