In NAM v. NLRB, No. 12-5068 (D.C Cir. May 17, 2013), the D.C. Circuit Court of Appeals struck against the NRLB notice rule.
The background is as follows. On August 30, 2011, the National Labor Relations Board (NLRB) published a final rule regarding notice posting. 76 Fed. Reg. 54,006. That final rule provides:
All employees subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures…”
39 C.F.R. 104.202(a). The final rule also declares that failure to post this notice is an unfair labor practice (ULP). In other words, if an employer fails to put up a NLRB notice, the employer violates the National Labor Relations Act (NLRA). This is essentially the focus for the Court of Appeals.
The court explained that under Section 8(e), the Board cannot find non-coercive employer speech to be an ULP or evidence of an ULP. The Court of Appeals found that the NLRB’s final rule did both. The court states,
Under the rule an employer’s failure to post the required notice constitutes an unfair labor practice. See 29 C.F.R. 104.210, 104.201. And the Board may consider an employer’s ‘knowing and willful’ noncompliance to be ‘evidence of antiunion animus in cases in which unlawful motive [i]s an element of an unfair labor practice.’ 76 Fed. Reg. at 54,035-36; see also 29 C.F.R. 104.214(b).
(as in original).