Death Knell For The Posting Rule?

In a May 7, 2013 ruling the U.S. Court of Appeals for the District of Columbia struck down the National Labor Relations Board’s (“NLRB”) rule that would have required employers to post a notice of employee rights under the National Labor Relations Act (“Act”). As many will recall, last year a U.S. District Court in South Carolina also struck down the NLRB’s posting rule. The District of Columbia Court of Appeals decision is the first one from a U.S. Circuit Court of Appeals on the subject.

The NLRB’s rule would have made failing to post the notice an unfair labor practice. Further, the rule provided that the failure to post could constitute evidence of anti-union animus in cases that involved other alleged unfair labor practices. For example, in a case alleging that an employer discharged an employee because of the employee’s union activities, the employer’s failure to post the notice would have been considered evidence that the employer possessed anti-union animus.

Relying largely on Section 8 (c) of the Act, the Court of Appeals ruled that these two enforcement penalties were unlawful. Section 8 (c) provides: “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 . … if such expression contains no threat of reprisal or promise of benefit.” This language applies to employer speech, whereas the required posting was speech created by the NLRB, not the employer. The Court of Appeals recognized that distinction, but went on to cite several First Amendment decisions holding that the right to speak necessarily includes the right not to speak. Based on that principle, forcing the employer to communicate specific government-sponsored content – on pain of being found to have committed an unfair labor practice, or to have the “failure to speak” seen as evidence of an unfair labor practice – violated Section 8 (c) of the Act. Therefore, the penalties were unlawful.

The other penalty under the notice posting rule – tolling the statute of limitations – was also found invalid. The time requirement for filing a charge under the Act was not subject to tolling based on this NLRB issued rule.

Having found that all three of the proposed penalties were not permitted, and that the penalties were not severable from the rest of the rule, the Court of Appeals struck down the notice posting rule as a whole. The Court of Appeals stated, however, that it was not ruling on the question of whether the NLRB had the authority to issue a notice posting rule at all. That comment begs the question of whether this Court of Appeals decision effectively sounds the death knell for the NLRB’s notice posting rule, or whether the NLRB will try again in the future. Time will tell.