Last year the U.S. Court of Appeals delayed the implementation of the NLRB’s poster on employee rights that the NLRB was trying to require all employers to post. If you made the mistake of posting it on your bulletin board then take that NLRB poster down!
It is a matter of freedom of speech
Last year I wrote about this poster in NLRB Poster is Dead At Least for the Rest of 2012. At that time I told you did not need to post the poster because the U.S. Court of Appeals in DC said there was too much confusion around the issue. They said they would rule on the poster at a later time. They did so on May 7, 2013. The court ruled on two aspects, the first being an employer’s right to free speech and the second striking down the penalty the NLRB was going to impose on companies for not publishing the poster.
In the first instance the court said that Section 8 (c) of the National Labor Relations Act protects the noncoercive speech of employers. Employers are to be allowed to present an alternative view and opinion of unionization. The requirement to post the poster did not allow employers that right to present an alternative view. The court said the Board cannot require employers to express the Board’s views as stated in the poster merely because it has regulatory authority over them. The court said that the rule violates employers’ free speech rights as protected by the First Amendment and Section 8(c) because it makes an employer’s failure to post the Board’s Notice an unfair labor practice and because it treats such a failure as evidence of hostility to unions.
The second provision that was struck down was the “tolling” penalty. The NLRB would have removed the statute of limitations on filing unfair labor practices, normally set at six months. The court said that the NLRA itself makes no provision for removing this statute of limitations and thus the action of the board to do so was prohibited by section 10 (b).
Because the enforcement provisions were declared invalid the court declared that the entire rule must fall.
It is unclear if the NLRB will appeal this to the US Supreme Court. My guess is that they will do so. There is too much at stake in the eyes of the unions for them not to make some attempt to get the Court of Appeals reversed. So stay tuned. In the meantime just make sure you don’t have this poster hanging on a wall anywhere.
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