D.C. Court Strikes Down NLRB Poster Rule

The United States Court of Appeals for the District of Columbia struck down on May 7, 2013 a rule requiring companies to post a notice advising employees of their rights under federal labor law, including the right to form or join a union. The rule, which the National Labor Relations Board published in August 2011, would have required nearly 6 million employers, many of them small businesses, to conspicuously display the employee-rights poster. Writing for the Court of Appeals, Senior Judge A. Raymond Randolph said the poster rule made an employer's failure to post the notice an unfair labor practice. However, federal law protects "the right of employers (and unions) not to speak," he continued. "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," Randolph said. Judges Janice Rogers Brown and Karen LeCraft Henderson agreed with the disposition of the case. Writing separately, however, Henderson said she also would have found the board lacked authority to promulgate the posting rule under a different provision of the National Labor Relations Act. Lawyers for the NLRB argued, among other things, that content of the poster reflected the board's speech, not the employer's. The board's attorneys said the poster's message was not ideological. Enforcement of the rule was on hold pending the outcome of the appeal.