Hunton Employment & Labor Perspectives

On May 7, 2013, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit invalidated a rule promulgated by the NLRB that would have required employers to post notices of employee’s rights under the National Labor Relations Act (“NLRA”) in the workplace.  According to the Court, employers have the right not to speak, and thus can be silent, on these issues.  Another case regarding the same issue is currently pending on appeal in the Fourth Circuit.

The NLRB’s posting rule, which was issued in August 2011, caused a great deal of concern among employers.  The rule would have required all employers to post notices informing employees of their rights under the NLRA, the NLRB’s contact information, and basic enforcement procedures under the NLRA.  The rule also contained three enforcement mechanisms: (1) that an employer’s failure to post the required notice would automatically constitute an “unfair labor practice” in violation of the NLRA; (2) that an employer’s refusal to post the notice could be considered by the NLRB as evidence of unlawful motive in cases where motive is an issue; and (3) that the NLRB could toll the 6-month limitations period for filing an unfair labor practices charge if the employer failed to post the required notice.

For employers, at least for now, silence is golden.  In striking down the rule, the Court of Appeals largely based its decision on the concept that employers have the right “not to speak” on certain labor issues.  Section 8(c) of the NLRA provides that the expression or dissemination of views, arguments, or opinions cannot constitute an unfair labor practice, as long as the expression contains no threat of reprisal or promise of benefit.  The Court reasoned that employers’ right to express and disseminate non-coercive speech under § 8(c) necessarily includes “the right of employers (and unions) not to speak.”  Thus, the Court held that the NLRB’s posting rule violated § 8(c) because it made an employer’s silence an unfair labor practice or evidence of an unfair labor practice.  The Court also struck down the third enforcement mechanism -- the tolling provision -- as a modification of the statute that was beyond the NLRB’s powers.

Having ruled that all three enforcement mechanisms of the posting rule were invalid, the Court of Appeals held that the posting rule itself was invalid because it was not severable from the enforcement mechanisms.  (The NLRB had stated during its rule-making process that it would not have issued the posting rule depending solely on voluntary compliance.)