Earlier today, the D.C. Court of Appeals issued its long-awaited decision in National Association of Manufacturers v. NLRB, No. 12-5068 (D.C. Cir. 5-7-13). As faithful readers may recall, the NLRB promulgated a rule in August 2011 requiring virtually all private employers to post a large poster explaining employee rights under the NLRA. NAM and other employer organizations filed a lawsuit to block the rule. As previously reported here, the D.C. District Court upheld the rule, but struck down a few of its enforcement provisions. Certain portions of the poster contained union-friendly descriptions of employee rights and rights that did not apply equally in all industries or circumstances. The poster also failed to describe employee rights to object to union dues and to seek decertification. Moreover, the rule tolled the limitations periods for, and ascribed anti-union motive to, employers that failed to post the poster and made them liable for an unfair labor practice. “We therefore conclude that the Board’s rule violates § 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 anti-union animus in cases involving, for example, unlawfully motivated firings or refusals to hire—in other words, because it treats such a failure as evidence of an unfair labor practice.”
The Court first considered
whether the NLRB had quorum to issue the rule (in light of its recent Noel Canning decision rejecting certain
recess appointments). The Court
concluded that there were three properly confirmed members of the NLRB – which is a quorum – when the rule was voted upon and
approved even though the term of one of those members expired before the rule
was published in the Federal Register.
The Court also concluded
that the most important issue in the case concerned employers' free speech
rights under §8(c) of the NLRA, instead of the §6 rights that had dominated
prior arguments. Under §8(c),
[t]he expressing of any views, argument, or opinion, or the
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.
Despite this statutory protection for free speech in
labor-management disputes, the Court found that the poster rule violated both
its letter and spirit:
Although § 8(c)
precludes the Board from finding noncoercive employer speech to be an unfair labor
practice, or evidence of an unfair labor practice, the Board’s rule does both. Under
the rule an employer’s failure to post the required notice constitutes an
unfair labor practice. See 29 C.F.R. §§ 104.210, 104.212.10 And the Board may consider an employer’s
“knowing and willful” noncompliance to be “evidence of antiunion animus in
cases in which unlawful motive [is] an element of an unfair labor practice.” 76
Fed. Reg. at 54,035–36; see also 29 C.F.R. § 104.214(b).11. The Board, in other words, will use an employer’s
failure to post the notice as evidence of another unfair labor practice.
The Court rejected the Board’s argument that the poster reflected
the NLRB’s speech and was not imputing speech to an employer. Analogizing to First Amendment cases which
protect a citizen’s right to “disseminate” pamphlets published by someone else,
the Court observed that:
The right to disseminate another’s speech necessarily
includes the right to decide not to disseminate it. First Amendment law
acknowledges this apparent truth: “all speech inherently involves
choices of what to say and what to leave unsaid.”
. . .
“Some of [the] Court’s leading First Amendment precedents
have established the principle that freedom of speech prohibits the government
from telling people what they must say.”
For example, the Supreme Court had previously held the First
Amendment prevented a state from requiring drivers to use a license plate that
said “live free or die” and from making school children state the pledge of
allegiance. The Court also rejected the
Board’s argument that an employer remained free to post its non-coercive position
about unionization next to the poster.
The Court also rejected the Board’s reliance on prior precedent
concerning the Bush Administration’s rule requiring federal contractors to post
a notice about employee Beck rights
because that rule did not apply to all employers and did not involve §8(c) in
that the rule was promulgated by the government as a purchaser instead of by
the NLRB. Moreover, in those cases, the
unions only argued that the Beck
notice rule was pre-empted by the NLRA and did not argue that it violated the
NLRA.
The Court likewise rejected the portion of the Board poster
rule that tolled the NLRA’s six-month limitations period. According to the
Court, few, if any courts, treat a victim’s ignorance of the law as a basis for
equitable tolling and the Board erred in concluded that this theory could
justify its action in violating the terms of §10(b).
NOTICE:
This summary is designed merely to inform and alert you of recent legal
developments. It does not constitute legal advice and does not apply to any
particular situation because different facts could lead to different results.
Information here can change or be amended without notice. Readers should not
act upon this information without legal advice. If you have any questions about
anything you have read, you should consult with or retain an employment
attorney.
