Controversial NLRB Posting Rule Declared Invalid
On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit struck down the final rule issued by the National Labor Relations Board (“NLRB”) on August 30, 2011, which would have required that all employers subject to the NLRB’s jurisdiction post a prescribed notice to employees and also place the notice on their intranets or web pages if they use such tools to communicate with their employees. The notice, which was created by the NLRB, informs employees of their right to join or create a union, bargain collectively, strike and picket, and engage in certain other conduct. The notice also identifies certain actions which, if taken by employers or unions, would be unlawful. We advised in alerts we issued on October 4, 2011, and again on April 17, 2012, that employers should wait to learn the outcome of litigation challenging the NLRB’s rule before posting the required notice.
The NLRB’s rule provides that an employer’s failure to post will be an unfair labor practice, will suspend the running of the six-month deadline to file any unfair labor practice charge against the employer, and may be evidence of the employer’s unlawful motive in NLRB cases challenging other conduct by the employer.
Relying upon Section 8(c) of the National Labor Relations Act (“NLRA”), a provision enshrining the free speech rights of employers provided that speech does not contain threats or promises of benefits, the court reasoned that freedom of speech not only protects the expression or dissemination of opinions and views, but also prohibits the government from telling people what they must say. The court concluded that the NLRB’s rule is invalid because it violates Section 8(c).
The court also concluded that the rule is invalid because the NLRB lacked authority to extend the six-month limitation period for the filing of unfair labor practices, which Congress had placed in the NLRA. The case name is National Assn of Manufacturers v. NLRB.
The NLRB may now seek to have this case heard by the U.S. Supreme Court, which is not obligated to take the case. While all employers are now free of the NLRB’s posting requirement unless and until the Supreme Court reverses this decision, government contractors and subcontractors remain obligated to post a very similar notice if they work under a contract of $100,000 or more that contains a posting requirement pursuant to executive order.
Jon Pettibone is managing partner at Quarles & Brady. He can be reached at (602) 230-5572 or firstname.lastname@example.org.