NLRB Posting Rule Held Invalid


U.S. Appellate Court Strikes Down NLRB Posting Rule
By Stephen R. McCutcheon, Jr.
Posted: May 8, 2013
The U.S. Circuit Court of Appeals for the D.C. Circuit dealt another setback to the National Labor Relations Board on Tuesday. In response to declining union membership, the Board adopted a controversial rule requiring each and every employer under its jurisdiction – approximately 6 million employers throughout the country – to hang posters informing employees of their right to unionize, bargain collectively, discuss wages and benefits, and to strike and picket, or choose not to participate in such activities.
Under the rule, the failure to post the notice is an unfair labor practice, and a “knowing and willful” failure to post the notice would be considered “evidence of antiunion animus” in cases where motive is an element of an unfair labor practice. The rule also tolled the statute of limitations for the filing of unfair labor practice charges if the employer has not complied with the posting requirement. The Board’s adoption of this rule was viewed by many as a decidedly pro-labor step, coercing employers to convey a pro-unionization message.
A coalition of organizations challenged the rule as in excess of the Board’s power under Section 6 of the National Labor Relations Act, which gives the Board the power to adopt rules and regulations necessary to carry out the provisions of the Act. The Board’s adoption of this rule was viewed as a drastic departure from more than 80 years of Board history over which the Board has held a “negative attitude” toward rulemaking, instead favoring the establishment of principles through adjudication of individual cases.
However, the appeals court opinion avoided the question of whether the Board had authority under Section 6 of the National Labor Relations Act to impose the posting requirement. Instead, the court determined that Section 8(c) of the act, which protects the First Amendment rights of employers, controlled the case. Section 8(c) was adopted by Congress because the Board was regulating employer speech too restrictively, and expressly protects the right of employers to discuss unionization, so long as the “expression contains no threat of reprisal or force or promise of benefit.”
The First Amendment and Section 8(c), however, protect not only the right to expression, but the right to refrain from speaking at all. Contrary to the requirements of Section 8(c), the Board’s rule required employers to disseminate information, upon threat of being found to have committed an unfair labor practice. According to the court, the Board’s rule violated Section 8(c) by finding noncoercive employer speech – or employer silence – to be an unfair labor practice, as well as evidence of further unfair labor practices. This is contrary to congressional intent to encourage debate on issues dividing labor and management, and allow employers to present information a union would not present and employees would not otherwise receive.
The court also rejected the Board’s tolling of the statute of limitations for filing of an unfair labor practice charge if an employer has not complied with the posting requirement. Having rejected all means of enforcing the posting requirement, the court determined that the entire rule must fall as the Board admitted it would not have issued the posting rule if it depended upon voluntary compliance.

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