NLRB Notice Rule Struck Down

Kollman & Saucier
Kollman & Saucier

On May, 7, 2013,  the United States Court of Appeals for the D.C. Circuit held  that the National Labor Relations Board lacked the authority to issue a  2011 rule which would have required all employers covered by the National Labor Relations Act (“NLRA”) to  post a workplace notice to employees.  The decision, National Association of Manufacturers v. NLRB, drove yet another stake in the heart of the Obama NLRB’s activist agenda.

As followers of this blog may recall, the Board’s notice posting requirement requires virtually all employers to post a notice informing employees of their rights to form a union, bargain collectively, join with coworkers to raise work related complaints, and strike.  The notice also makes employees aware that employers cannot:

  • Prohibit them from soliciting for a union during non-work time or from distributing union literature during non-work time and in non-work areas;
  • Interrogate employees about support for the union;
  • Take adverse action against employees because they support a union;
  • Prohibit employees from wearing union buttons or tee shirts;
  • Spy on union activities.

The NLRB requires the notice be posted where other employer notices are posted, and also be posted on the intranet or website if that is where the employer normally communicates to employees about personnel policies.

In April 2012, the D.C. Circuit enjoined implementation of the rule, which had been scheduled to take effect on April 30, 2012.  In its May 7th decision, the D.C Circuit struck down the rule in its entirety.  The Court reasoned that §8(c) of the NLRA (which gives employers the right to communicate their views about unions to employees), “precludes the Board from finding non-coercive employer speech to be an unfair labor practice or evidence of an unfair labor practice.”  Because the notice posting rule requires employers to post an NLRB-drafted summary of what the Board deemed to be key rights under the NLRA, it unlawfully infringed upon an employer’s §8(c) right not to disseminate speech with which it disagrees.  As support for this proposition, the Court quoted the Supreme Court’s decision in Rumsfeld v. Forum for Academic & Institutional Rights, where Chief Justice Roberts stated that “freedom of speech prohibits the government from telling people what they must say.”

As a result of the D.C. Circuit’s decision, the NLRB notice posting rule now has no implications or effect on employers. Unless the NLRB successfully appeals this decision before the Supreme Court, we can write this off as another failed attempt by organized labor to use its political allies in Washington to achieve what it cannot win in the workplace.


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