By: Thomas W. Mackenzie

The Court of Appeals for the District of Columbia issued a decision on May 7, 2013 which invalidated a rule issued by the National Labor Relations Board (NLRB) requiring employers to notify workers of a right to unionize. The rule was originally promulgated in 2011, but was never implemented. The NLRB suspended the obligation to post the rule indefinitely pending multiple court challenges.

The language of the poster, which was crafted by the NLRB, was viewed as exceedingly “pro-union” by management groups, including the National Association of Manufacturers, one of the parties which brought the initial action in federal district court seeking to block enforcement of the rule. The poster specifically advised employees that they had the right to form and join unions, collectively bargain with representation, discuss the terms of their employment, and to take action to improve working conditions. Under the rule, employers who failed to post the notice would be deemed to have committed an unfair labor practice. In addition, the applicable six month statute of limitations under the National Labor Relations Act (Act) to file unfair labor practice charges would have been tolled so long as the notice was not posted.

In invalidating the rule, the D.C. Circuit relied primarily on the First Amendment, as well as Section 8(c) of the Act, holding that the Constitution protects “the decision of both what to say and what not to say.” The court found that the mandated language required in the posting constituted an infringement on freedom of speech that
prohibits the government from telling people what they must say. Section 8(c) of the Act specifically guarantees the right of employers to oppose unions through speech and writing so long as the message is not coercive.

The dust is by no means settled on this issue. Further appeals are likely. However, at this juncture, employers are reminded that there is no requirement that the so-called “employee rights” notice from the NLRB be posted. The decision will not affect an employer’s obligation to post a notice of union election or a posting required after a finding that the employer violated the Act.

If you have questions about anything in this e-alert, feel free to call Tom Mackenzie at 414-226-4813, or any other Lindner & Marsack attorney at 414-273-3910.

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