NLRB Gets Hung Up on Posters

In 2011, the National Labor Relations Board issued a rule that the six million employers subject to its jurisdiction must post a “Notification of Employee Rights under the National Labor Relations Act” (the “Notice”) or be guilty of an unfair labor practice.  Under that rule, employers who did not post the Notice could be presumed to have anti-union bias that could result in being found guilty of other unfair labor practices.  Finally, a failure to post the Notice could result in the six-month filing period for unfair labor practices being extended.  The Notice informed employees of their right to organize a union and to strike, among other things.

The rule was originally slated to go into effect in late 2011 but was delayed pending court challenges.

The DC Circuit Court of Appeals struck down the Notice rule yesterday.  The decision will apply to employers nationwide because of the jurisdiction the DC court has over NLRB matters.

In 1947, Congress inserted a provision – Section 8(c) – into the National Labor Relations Act, giving employers the right to speak freely about unions so long as they made no threats or promises.  This free speech right under Section 8(c) is analogous to the free speech rights we all have under the First Amendment of the United States Constitution, according to the DC Circuit.

In reaching its decision, the Court reaffirmed the principle that the First Amendment prohibits the government from telling people what they must say because it protects “the decision of both what to say and what not to say.”

Because the Notice rule tells employers what they must “say”, i.e., disseminate, to their employees, it violates that principle and employer rights under Section 8(c) of the NLRA.

The decision went on to find the other failure to post provisions of the rule invalid and it also cast doubt on the NLRB’s authority to issue a posting rule in the first place.  You don’t need to worry about those NLRB posters after all for now, but we will keep you posted.  You are now free to go back to worrying about all of the other workplace issues that keep you up at night.

If you have any questions, please contact any one of the attorneys at Skoler, Abbott & Presser, P.C.