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D.C. Circuit Strikes Down NLRB’s Poster Requirement

In NLRB, Poster on May 8, 2013 at 12:52 pm
English: Color logo of the National Labor Rela...

English: Color logo of the National Labor Relations Board, an independent agency of the United States federal government. (Photo credit: Wikipedia)

A panel for the U.S. Court of Appeals for the D.C. Circuit yesterday struck down the NLRB’s rule requiring employers to post an employee rights poster informing employees of their rights under the NLRA to unionize, among other things.  National Association of Manufacturers v. National Labor Relations Board, No. 12-5068, __ F.3d __ (D.C. Cir. May 7, 2013).  The court reasoned that the rule violated employers’ free speech rights and was, therefore, unlawful.  “The right to disseminate another’s speech necessarily includes the right to decide not to disseminate it.”  Slip Op. at 17.

We therefore conclude that the Board’s rule violates § 8(c) because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus in cases involving, for example, unlawfully motivated firings or refusals to hire—in other words, because it treats such a failure as evidence of an unfair labor practice.19 See Brown & Root, Inc. v. NLRB, 333 F.3d 628, 637–39 & n.7 (5th Cir. 2003).

Slip Op. at 23.  You can read the decision here.

By CHARLES H. JUNG

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