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NLRB - Notice Posting Rule

On May 7, 2013, in the case of National Association of Manufacturers v. National Labor Relations Board, the U.S. Court of Appeals for the District of Columbia (the "Court") struck down the National Labor Relation Board's (the "NLRB" or the "Board") requirement that employers post on their properties and on their websites a "Notification of Employee Rights under the National Labor Relations Act."

The NLRB's notification informed employees of their right to join a union and engage in other activities to improve working conditions.  Under the rule, the notification had to be posted in a conspicuous place on a piece of paper that was 11 inches by 17 inches.  This rule, as explained by the Court, applied "to 'nearly 6 million' employers, 'the great majority' of which are small businesses."

As outlined in the rule, the failure to post this notification had three ramifications for employers.  First, employers were considered to have committed an unfair labor practice violation.  Second, the Board deemed any noncompliance as evidence of an anti-union motive for certain unfair labor practice charges.  Finally, the Board would suspend the six-month statute of limitations for filing unfair labor practice charges for as long as the notification was not posted.

In striking down this notice posting rule, the Court drew from a long line of the Supreme Court's freedom of speech cases.  The Court began by noting that the First Amendment covers the dissemination of speech in addition to the creation of speech.  Under this protection, the First Amendment "'prohibits the government from telling people what they must say.'"  Therefore, the Court found that the Board could neither force employers to post this notification nor could they penalize employers that fail to post the notification.

Additionally, the Court stated that the NLRB did not have the authority to suspend the six-month statute of limitations for filing unfair labor practice charges because this time period had been enacted by Congress.  

The Court also touched upon the controversy surrounding the validity of the NLRB members who had been appointed by President Obama during an intrasession recess of the Senate (See our previous Client Alert:  Court Declares Obama's NLRB Appointments Unconstitutional).  At the outset of the opinion, the Court said that it was working on the assumption that these appointees were constitutionally invalid.  However, since three valid Board members were also serving at the time that this rule was enacted, the Court held that the rule was validly passed.  Although it did not affect the outcome of this case, the opinion suggests that courts should strike down any NLRB ruling that did not have three validly appointed Board members.

As of May 7th, employers are no longer required to post the NLRB's notification in a conspicuous place and on their websites.  If your employees are asking about the removal of this notification or about their NLRA rights in general, please contact a member of MacDonald Illig's Labor and Employment practice group.