NLRB employee union rights poster rule thrown out in court

I wrote last year about a controversial new rule by the National Labor Relations Board (NLRB) requiring private employers to post in their workplaces an 11x17-inch poster advising employees of their rights under federal law to form unions, strike, picket, etc. Under the rule an employer’s failure to post the required notice would have constituted an unfair labor practice.

The rule, enacted on August 30, 2011, had been expected to apply to nearly 6 million employers in the U.S., the great majority of which are small businesses. It never went into effect because litigation was promptly filed by several business groups challenging its validity.

As an update I can report that an important federal appellate court has just found that the NLRB acted illegally in enacting this rule, which the court ordered vacated.

On May 7, 2013, the Circuit Court of Appeals for the District of Columbia in Washington, D.C. found, in the case of National Association of Manufacturers v. NLRB, that Section 8(c) of the National Labor Relations Act precludes the Board from finding non-threatening employer speech to be an unfair labor practice, or evidence of an unfair labor practice, and that the Board’s new rule violated both prohibitions. The decision was heavily colored by First Amendment free speech principles, but was based on federal labor law and not on constitutional grounds.

“[T]he Board’s rule requires employers to disseminate [government] information, upon pain of being held to have committed an unfair labor practice,” wrote Senior Judge A. Raymond Randolph for a unanimous three-judge panel.  “But that difference hardly ends the matter. The right to disseminate another’s speech necessarily includes the right to decide not to disseminate it.”

“How … can it be an unfair labor practice,” continued Judge Randolph, “for an employer to refuse to post a government notice informing employees of their right to unionize (or to refuse to)? Like the freedom of speech guaranteed in the First Amendment, Section 8(c) necessarily protects—as against the Board—the right of employers (and unions) not to speak.”

In another, similar lawsuit, the United States District Court for the District of South Carolina ruled last year that the Board lacked authority to promulgate the rule. See Chamber of Commerce of the U.S. v. NLRB, 856 F. Supp. 2d 778 (D.S.C. 2012). The appeal in that case is now pending before the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia. 

It may well be that the U.S. Supreme Court will need to review this issue. But for the time being employers may ignore the poster rule until further notice.