On May 7, 2013, the U.S. Court of Appeals for the D.C. Circuit, in National Association of Manufacturers v National Labor Relations Board, struck down a NLRB regulation mandating that employers post an 11-by-17 inch board in a prominent location explaining the rights of workers to unionize and bargain collectively.
Interestingly, the D.C. Circuit did not rule that the NLRB did not have the authority to promulgate the rule. Rather, the court ruled that the various methods of enforcing the rule violated the National Labor Relations Act (“NLRA”).
The court stated that the rule violated section 8(c) of the NLRA “because it makes an employer’s failure to pose the [NLRB’s] notice an unfair labor practice, and because it treats such failure as evidence of anti-union animus.” Essentially, the court was unwilling to force employers to post government speech.
The Supreme Court of the United States is likely to weigh in on the ultimate validity of the rule. Stay tuned for further updates.
