On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) held that the new rule from the National Labor Relations Board (the “Board”) requiring employers to post a notice regarding employee rights under the National Labor Relations Act (“NLRA” or the “Act”) is invalid because it violates employers’ free speech rights. National Ass’n of Mfrs. v. NLRB, No. 12-5068 (D.C. Cir. May 7, 2013).
The D.C. Circuit’s decision does not directly address the requirement under Executive Order 13496 that covered federal contractors post a different (albeit similar) notice informing employees of the right to unionize and to engage in certain protected activities under the NLRA. While the decision suggests that requiring this posting could also violate employers' free speech rights, because the decision did not directly address the Executive Order, federal contractors should not remove the notice that they are required to post.
The Board’s Posting Rule
As we previously reported, in August 2011, the Board published a rule requiring nearly all private-sector employers to conspicuously post a notice entitled, “Notification of Employee Rights under the National Labor Relations Act.”
With regard to enforcement of the posting requirement, the Board’s posting rule set forth three consequences for an employer’s failure to post the mandated notice: (1) it may constitute an independent unfair labor practice; (2) it may be grounds for tolling the 6-month statute of limitations; and (3) the Board may consider it to be evidence of unlawful motive in a case in which motive is an issue.
D.C. Circuit Strikes Down Posting Rule
After finding that the Board had sufficient members to issue the posting rule (because the Board still had at least three lawfully appointed members at the time it promulgated the posting rule), the Court analyzed whether requiring employers to post the Employee Rights Notice violates employers’ free speech rights under the Act.
Section 8(c) of the Act protects an employer’s First Amendment right to engage in non-coercive speech about unionization and expresses a congressional intent to encourage debate on labor-related issues. Specifically, Section 8(c) provides, in relevant part:
The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic or visual form, shall not constitute or be evidence of any unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.
Drawing from First Amendment case law, the court concluded that while Section 8(c) “precludes the Board from finding non-coercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board’s rule does both.” That is, the Board’s rule mandates that the failure to post the Employee Rights Poster constitutes an unfair labor practice, and can also be evidence of anti-union animus to support another unfair labor practice. Thus, both of these enforcement mechanisms violated the plain language of Section 8(c) by requiring the employer to disseminate the Board’s Notice in order to avoid one or more unfair labor practice charges.
As to the tolling of the 6-month statute of limitations, the court held that Congress could not have foreseen the type of alleged equitable tolling the Board would attempt to enact into law in 2011, and thus could not have intended that equitable tolling be incorporated into the Act. As a result, the Board’s equitable tolling theory violated the Act.
Because the court concluded that the Board would not have adopted the posting rule absent any basis for enforcement, the court invalidated the posting rule as a whole.
For now, employers are not required to post this notice (the Supreme Court could ultimately overrule the D.C. Circuit’s decision). As noted above, however, federal contractors are advised to continue to post the notice required by Executive Order 13496 until further notice. We will be closely following this issue. Stay tuned for further developments.