Hunton Employment & Labor Perspectives

On Monday, January 6, 2014, the National Labor Relations Board (“NLRB”) announced that it declined to seek U.S. Supreme Court review of two adverse rulings concerning its rule requiring employers to display posters informing employees of their right to unionize.  Under the rule, an employer’s failure to display the poster would have constituted an unfair labor practice.

The D.C. Circuit and Fourth Circuit both previously struck down the rule as a violation of the National Labor Relations Act (“NLRA”).  The D.C. Circuit, which was the first to reject the rule, held that the rule violated Section 8(c) of the NLRA, which states that the expression of views cannot constitute an unfair labor practice so long as the views expressed contain no threat of reprisal or promise of benefits.  According to the D.C. Circuit, Section 8(c), in addition to granting employers the right to free, non-threatening speech, also grants employers the right to remain silent.  Nat’l Ass’n of Mfrs. v. NLRB, 717 F.3d 947 (D.C. Cir. 2013).   

The Fourth Circuit rejected the rule on slightly different grounds, holding that the rule would violate Section 6 of the NLRA.  The Fourth Circuit held that Section 6, which grants the NLRB authority to issue rules necessary for executing the other provisions of the NLRA, did not grant the authority in this instance to require employers to display the posters.  The Fourth Circuit also concluded that Congress never intended to grant the NLRB the authority to issue notice-posting requirements.  Chamber of Commerce of U.S. v. NLRB, 721 F.3d 152 (4th Cir. 2013).   

The upshot of the NLRB’s decision not to appeal to the Supreme Court for employers is that the rule will not go into effect and employers will not be required to display notices informing employees of their right to unionize.  Employers must be mindful, however, that other notice-posting requirements are still firmly in place and that the NLRB’s decision does not affect these other requirements.