In an opinion issued today, May 7, 2013, the U.S. Court of Appeals for the D.C. Circuit, struck down the NLRB’s 2011 rule requiring employers to post a notice of employee rights under the National Labor Relations Act on their properties and websites. National Association of Manufacturers v. National Labor Relations Board. Among other provisions, the rule provided that an employer would be guilty of an unfair labor practice if it did not post the notice.
Noting that the NLRB’s posting mandate through rulemaking “departs from its historic practice,” the court found the posting requirement invalid for a number of reasons. The court noted that the NLRA itself allows employers to engage in noncoercive free speech regarding union organizing, including notifying employees of their right not to join a union. In a victory for employer free speech, the court found the posting rule invalid because it cannot be an unfair labor practice for an employer to refuse to post a notice informing workers of their right to unionize.
Where this decision leaves the posting requirement is unclear. The NLRB may choose to appeal this decision or it may wait to see how a similar challenge to the rule that is pending with the U. S. Court of Appeals for the Fourth Circuit fares. The NLRB has taken an aggressive position regarding the posting rule. Even with changes in the Board’s composition and other challenges, such as the Noel Canning decision invalidating the President’s recess appointments to the Board, the NLRB does not yet seem in the mood to back down. We will, of course, provide updates on any developments.