‘Required’ Union Poster Unlawful According to D.C. Circuit

On May 7, 2013, in Nat’l Ass’n of Mfrs. v. NLRB, the United States Court of Appeals for the District of Columbia decided that a rule implemented by the National Labor Relations Board (“Board” or “NLRB”) requiring most private sector employers to post a notice about workers’ rights to unionize was invalid. As previously reported, the Board issued the rule almost two years ago, and has repeatedly postponed its effective date pending the outcome of legal challenges to the rule by business groups.

Practical Implications of the Decision

The big takeaway from the D.C. Circuit’s decision is that employers (still) have no legal obligation to post a notice about unionizing in the workplace – at least not anytime in the near future. Notably, there is a similar case pending before the Fourth Circuit (covering Maryland, North Carolina, South Carolina, and Virginia), which has the authority to uphold the rule for those states within its jurisdiction. Additionally, the NLRB may ask the United States Supreme Court to decide the issue. For now, employers may want to review their workplace postings to confirm the notice is not on display. This is particularly true for employers that purchase and utilize “universal” workplace posters, which may include the notice.

Notably, the decision has no impact upon federal contractors, who still are required to post a similar notice.

Summary of the Decision

The D.C. Circuit’s decision to invalidate the Board’s rule was premised on the penalties associated with an employer’s failure to post the notice, some of which ran afoul of employer rights. Under the rule, a failure to post could subject an employer to: (1) an unfair labor practice; (2) a finding of anti-union motivation where other alleged violations of the Act are asserted against an employer; and/or (3) a tolling of the NLRA’s 6-month statute of limitations. The D.C. Circuit reasoned that the first two potential penalties were inconsistent with an employer’s explicit right to express and disseminate “any views, argument, or opinion” on unions to its workers as long as those messages are not coercive. The Court reasoned that just as an employer has this broad right to share information about unions with its workforce, an employer has the reciprocal right not to express or disseminate such information, and penalizing them for exercising this right defies the express language of the Act. The D.C. Circuit added that the tolling penalty ran afoul of the NLRA because the drafters of the Act could not have possibly contemplated an expansion of the limitations period based upon an employer’s failure to post a notice about unionization, as no such equitable tolling had ever been recognized as of the time Congress enacted the 6-month statute of limitations.

Notably, the D.C. Circuit’s decision comes only a few months after Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013) where the same court decided that the Board has lacked the power to act since at least January 4, 2012 due to invalid “recess” appointments by President Obama. (We previously reported on the Canning decision in detail. And, as anticipated, the Board petitioned the Supreme Court to review the D.C. Circuit’s decision in Canning about 2 weeks ago.) In its more recent decision about the workplace posting, the D.C. Circuit noted that the NLRB actually has lacked the power to act since August 27, 2011, but clarified it was not this lack of power that rendered the posting rule invalid.

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For answers to any questions concerning the workplace posting or other issues involving the NLRB, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.

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