On August 25, 2011, the National Labor Relations Board (NLRB) issued a rule requiring all private sector employers to post workplace notices informing employees of their unionization rights under the National Labor Relations Act (NLRA).1 The rule mandated that private sector employers inform their employees that they have the right to form or join a union, to bargain collectively with their employer for improved wages and working conditions, and, alternatively, to refrain from participating in union activities. The NLRB also required employers to instruct employees on how to contact the NLRB for further information or to register a complaint under the NLRA. The NLRB’s rule required the 11x17 inch notice be posted in an accessible location in the workplace.
On December 19, 2011, the federal court in Washington, D.C. requested that the NLRB postpone the effective date of the rule in order to resolve legal challenges to the rule filed by the U.S. Chamber of Commerce, National Federation of Independent Businesses and National Association of Manufacturers. In response, on December 23, 2011, the NLRB agreed to the postponement so that employers were not required to comply with the posting requirements. In March 2012, the United States District Court for the District of Columbia determined the NRLB had authority to implement the rule but struck some of its provisions. This decision was appealed to the United States Court of Appeals for the D.C. Circuit. On April 17, 2012, the United States Court of Appeals for the D.C. Circuit enjoined the NLRB from enforcing the rule until it issued a decision on the appeal.
On May 7, 2013, the United States Court of Appeals for the D.C. Circuit struck down the NLRB rule. The court determined the rule violated Section 8(c) of the NLRA. This section provides, “The expressing of any views, arguments, or opinion, or the dissemination thereof…shall not constitute or be evidence of an unfair labor practice….” According to the court, Section 8(c) gives employers the right to free speech and also the right to stay silent. Accordingly, because the NLRB’s proposed rule made the failure to post the required notice an unfair labor practice, the court determined it was at odds with Section 8(c). In essence, the court determined that employers have a right to remain silent and not discuss their union views, pro or con. The NLRB’s proposed rule, however, required employers to express a view.
Interestingly, the majority opinion did not address whether the rule exceeded the NLRB’s authority under Section 6 of the NLRA. However, a concurring opinion joined by another judge determined the rule did exceed the NLRB’s authority. Regardless, the decision is a big win for employers.