Labor & Employment Developments Blog

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit struck down a National Labor Relations Board (“NLRB”) rule requiring both union and non-union employers to display posters informing employees of their right to form a union and engage in other concerted activity. 

The U.S. Court of Appeals for the D.C. Circuit held that the NLRB rule was a violation of both the National Labor Relations Act’s (“NLRA”) “free speech” provision and the 1^st Amendment of the Constitution.  The majority opinion relied primarily on Section 8(c) of the NLRA, the so-called "free speech" provision which allows employers to advise employees of their view on unions as long as it is done in a non-coercive manner.  In sum, the court held that the NLRB rule violated employers’ free speech rights by forcing them to display the posters or face charges of committing an unfair labor practice. 

The NLRB adopted a rule in August 2011 that required millions of private employers to post a notice alerting employees to their rights under the NLRA, including their right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to choose not to do any of these activities.

The federal appeals court called the NLRB position hypocrisy because an employer’s failure to post the notice would be an unfair labor practice, despite the NLRA’s preservation and protection of the right of employers (and unions) not to speak. 

The D.C. Circuit is not the first to reject the NLRB’s poster rule.  In April 2012, a federal trial judge in South Carolina also ruled that the NLRB had no authority to require such a poster, a ruling currently being appealed by the NLRB to the U.S. Court of Appeals for the Fourth Circuit.

The full opinion is available here.