On Tuesday, May 7, 2013, in National Ass’n of Manufacturers v. National Labor Relations Board, a three-judge panel of the United States Court of Appeals for the D.C. Circuit issued an opinion striking down a controversial rule issued in 2011 by the National Labor Relations Board (“NLRB”). This rule would have required companies to post a notice affirmatively advising employees of their rights under federal labor law, including the right to form or join a union. While the rule had been scheduled to go into effect on April 30, 2013, its implementation had been stymied by the issuance of an injunction and several court challenges.
The Court of Appeals was troubled by the fact that the rule made the failure of a company to post the required poster an unfair labor practice in itself or, at a minimum, prima facie evidence of union animus in an unfair labor practice proceeding. In striking down the rule, the Court of Appeals relied upon section 8(c) of the National Labor Relations Act (“NLRA”), which states:
The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.
29 U.S.C. § 158(c). Using this provision, the Court of Appeals ultimately concluded that if the expression of views was protected under the NLRA against a charge that such an expression was an unfair labor practice, so long as the expression was noncoercive, so too was silence or the failure to express a particular viewpoint. In his opinion, Senior Judge Randolph wrote, "[t]his is why, for example, a company official giving a noncoercive speech to employees describing the disadvantages of unionization does not commit an unfair labor practice if, in his speech, the official neglects to mention the advantages of having a union." As a result, the Court of Appeals concluded that the NLRB’s poster requirement rule violated section 8(c), in that the rule made the failure of an employer to speak in a particular manner a per se unfair labor practice.
This may mean the end of the line for the NLRB’s poster requirement rule. However, the NLRB could seek rehearing of this decision by the en banc Court of Appeals for the D.C. Circuit or the NLRB could seek to immediately appeal this decision to the Supreme Court. Additionally, a federal district judge in South Carolina in April, 2012 also held that the NLRB lacked the authority to issue this poster requirement rule. That South Carolina decision is currently on appeal to the United States Court of Appeals for the Fourth Circuit. In the unlikely event that the Fourth Circuit should reverse the district court’s holding and uphold the NLRB’s rule, a split in the Circuits would exist, making it more likely that the Supreme Court would ultimately resolve the issue.
Thus far, the NLRB has had a very rough ride before the D.C. Court of Appeals of late. Because implementation of the poster requirement rule has been placed on hold as a result of various challenges, employers are currently relieved of the obligation to prominently display the poster in their workplaces. Prudent employers should continue to monitor this issue and the actions taken by the NLRB in this area. We will continue to provide updates as new issues arise.