D.C. Circuit Court of Appeals Strikes Down NLRB Posting Requirement

Contributed by Jeffrey A. Risch, Esq.

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit held that the National Labor Relations Board’s (NLRB) regulation requiring businesses to post notices of worker rights to engage in pro-union activities, or be subject to punishment, violates federal labor law. (Nat’l Ass’n of Mfrs. v. NLRB, D.C. Cir., No. 12-5068, May 7, 2013).

Writing for the Court, Justice Raymond Randolph held that the National Labor Relations Act (NLRA) precludes the NLRB from forcing employers to post in workplaces government speech through threat of unfair labor charges and/or the tolling of the NLRA’s statute of limitations in cases in which an employer failed to display the required notice.

The “post or else” notice communicated, among other points, to employees that they have the right to:

  • organize a union to negotiate with their employer about wages, hours and working conditions;
  • form, join or assist a union;
  • bargain collectively with their employer;
  • discuss wages and benefits and other terms or conditions of employment or union organizing with co-workers or a union;
  • strike and picket, depending on the purpose or means of the strike or the picketing; and
  • choose not to do any of these activities, including joining or remaining a member of a union.

Although the decision did not directly address the NLRB’s authority to promulgate such rules under Section 6 of the NLRA, the concurring opinions (Justices Karen LeCraft Henderson and Janice Rogers Brown) added that they would also find that Congress did not intend “to authorize a regulation so aggressively prophylactic as the posting rule.”

In short, this is indeed a psychological blow to BIG Labor. Most importantly perhaps, this may take some of the proverbial wind out of the NLRB’s sails and its decidedly pro-labor agenda.

For now, employers can ignore, remove or cover up this posting. The longer term effects remain to be seen.