On May 7, the U.S. Court of Appeals for the D.C. Circuit issued a long-awaited ruling regarding the National Labor Relations Board’s “notice posting” rule. That rule, originally issued in August 2011, would have required almost all private-sector employers to post a notice in the workplace informing employees of their right to form and join unions, and otherwise engage in protected, concerted activity such as discussing terms and conditions of employment with other employees. Many employers and the U.S. Chamber of Commerce objected to making any such posting and also felt that the posting ordered by the NLRB was not balanced and could encourage unionization. Under the NLRB’s promulgated rule, failing to post the notice was itself an unfair labor practice and also would toll the statute of limitations indefinitely for any other unfair labor practices committed by employers who failed to post.
The D.C. Circuit stuck down the NLRB’s rule in its entirety. It first found that the notice rule violated section 8(c) of the National Labor Relations Act, which is widely known as the “employer free speech” provision and was designed to mimic the First Amendment. The D.C. Circuit held that it is well established under other court decisions that “free speech” includes both the right to speak as well as the right to refrain from speaking. By requiring an employer to post a notice informing employees of their right to unionize, and creating a new unfair labor practice for refusing to post the notice, the court concluded that the rule violated employers’ free speech rights to remain silent about unions. The D.C. Circuit also found that provisions of the rule preventing the statute of limitations from running until the notice was posted was an attempt by the NLRB to change the National Labor Relations Act in a way that Congress did not intend.
For now, the requirement that employers post the NLRB’s notice is of no effect. But it remains to be seen how the U.S. Court of Appeals for the Fourth Circuit will rule on a case involving the same issue. If the Circuits split on the issue, and even if they do not, the issue could well be taken up by the U.S. Supreme Court.
The D.C. Circuit’s ruling has no impact on the requirement under Executive Order 13496 that most federal contractors with contracts having a value of $10,000 or more post a similar Department of Labor notice. That order was issued in January 2009 and remains in effect.