D.C. Circuit Invalidates NLRB Poster Rule: Court Strikes Another Blow to Agency by Striking Down Rule Requiring Employers to Post Notice of Employee Rights

Labor & Employment Alert


The U.S. Court of Appeals for the D.C. Circuit’s legal sparring with the National Labor Relations Board (NLRB) continued on Tuesday when a unanimous panel held that the NLRB’s poster rule was invalid because it infringed on employers’ free speech rights.

The NLRB had enacted a rule requiring employers subject to its jurisdiction to post on their property a poster notifying employees of their rights under the National Labor Relations Act. Under the rule, whose enforcement had previously been delayed because of an injunction, if a poster was not displayed conspicuously, then the employer committed an unfair labor practice and evidence of failure to post could be interpreted as anti-union bias. Among other things, the poster informed employees of their right “to form, join, or assist a union”; “to bargain collectively through representatives of their choosing”; “to strike and picket”; and to wear “union hats, buttons, t-shirts, and pins in the workplace,” according to the court's opinion. The rule applied to about 6 million businesses, most of which were small businesses.

On May 7, the D.C. Circuit invalidated the rule, holding that it would violate employers’ right not to speak if the failure to post a notice constituted an unfair labor practice. The court relied upon a specific provision of federal labor law prohibiting regulation of speech about unionization so long as the speech was non-coercive (29 U.S.C. § 158(c)). The D.C. Circuit found that the NLRB’s poster rule violated this provision. In doing so, the court compared the NLRB poster rule to other cases where compelled government speech has been struck down on First Amendment grounds. The court found that the NLRB’s poster rule was akin to compelled speech violative of the First Amendment, stating that “the right to disseminate another’s speech necessarily includes the right not to disseminate it.”

The D.C. Circuit’s invalidation of the poster rule comes on the heels of the court’s January 2013 decision in Noel Canning v. NLRB, in which it held that recess appointments to the NLRB were constitutionally invalid because the Senate was not actually in recess. The NLRB is petitioning the Supreme Court to review that decision, which could invalidate every NLRB action taken for the last two years if it is upheld. The NLRB has not announced whether it will also appeal the striking down of its poster rule. In the meantime, the NLRB continues to issue decisions consistent with its most recent precedent, including decisions “at risk” under the Noel Canning decision.