Six Million Employers Have the Right to Remain Silent According to the D.C. Circuit

Written by Robert G. Brody and Abby M. Warren on May 30, 2013

In a rare win for management, a unanimous three-judge panel of the D.C. Circuit Court ruled on May 7, 2013, that the National Labor Relations Board’s (“Board”) rule requiring employers to post a notice detailing employees’ right to join unions is invalid (National Association of Manufacturers v. NLRB).  

The poster requirement, first issued by the Board in 2011, would have required employers to display a large poster announcing to employees that they have certain rights to unionize under the National Labor Relations Act (“Act”) and under caselaw.  In 2011, the effective date for this rule was delayed several times and two federal district courts (D.C. and South Carolina) found this rule invalid.  When the D.C. District Court decision was appealed, the Court enjoined the rule pending the appeal.  The case out of South Carolina is on appeal before the Fourth Circuit.

According to the now-invalid rule, if an employer failed to post the notice, this would constitute 1) an unfair labor practice, 2) evidence of unlawful motive in NLRB proceedings, and 3) a basis for tolling of the six-month limitations period for filing unfair labor practice charges.

The Court noted that the rule was not invalid under Noel Canning because there was a valid quorum at the time the rule was promulgated.  The Court went on to analyze the rule under the First Amendment regarding “compelled speech” and under Section 8(c) of the Act which states:

The expressing of any views, argument, or opinion, or the non-dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.

Under Section 8(c), the Second Circuit determined the employer has a right to keep silent on the views held by others without incurring an unfair labor practice.  The Court described the employer’s right, stating:

This is why, for example, a company official giving a noncoercive speech to employees describing the disadvantages of unionization does not commit an unfair labor practice if, in his speech, the official neglects to mention the advantages of having a union.  

The Court held that forcing an employer to post a notice or face a penalty also violated the employer’s right to be silent.  The Board’s last mechanism for enforcement, using an employer’s failure to post the notice as a basis for tolling the six-month limitation period for filing unfair labor practice charge, was vacated because the Court held the Board had no authority to make such a change to the law.  With all three devices for enforcement of the notice-posting rule found to be invalid, the Court vacated the rule.  The issue of whether the Board had the authority to create such a rule in the first place was not addressed.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More

Abby M. Warren is an Associate with Brody and Associates, LLC. She works on both Labor and Employment Law matters. Abby worked at the New Haven Superior Court. Learn More