On May 7, 2013 the United States District Court for the District of Columbia Circuit ruled that the poster designated by the NLRB as a required method of notifying both union and non-union employees of their rights under the National Labor Relations Act (“NLRA” or the “Act”)  is inconsistent  with employers’ rights to free speech under Section 8(c) of the Act.   The case,  National Association of Manufacturers v. NLRB,  is the first decided by a circuit court and pretty much signals the death knell for the poster whose effective date has been  repeatedly postponed as a result of numerous legal challenges. The original rule on the notice was put in place on August 25, 2011.  The rule required that the poster  had to be put in a conspicuous place in all workplaces subject to the Act and had to explain employees’ rights to collectively bargain, to discuss the terms and conditions of employment and to go on strike.

The court  ruled that the Notice Rule conflicted with section 8(c) of the NLRA,  known as the employer “free speech” provision.  The order stated that Congress  intended for employer free speech rights in the labor context to be equivalent to First Amendment protections. The D.C. Circuit concluded that creating a new unfair labor practice or finding unlawful motivation in an unfair labor practice case, based on the failure to post the notice, amounted to an impermissible restriction on employer free speech.  In doing so the court stated the following:

“[T]he Board’s rule requires employers to disseminate such information, upon pain of being held to have committed an unfair labor practice. But that difference hardly ends the matter. The right to disseminate another’s speech necessarily includes the right to decide not to disseminate it.”

The Court also ruled that the provision of the Rule which tolled the period of time for bringing an unfair labor relations action was inappropriate in that it was inconsistent with the Act’s general six month statute of limitations.

For all intents and purposes this decision means that employers  can put aside the posters they purchased in 2011 as it is unlikely that the Notice Rule will resurface in the foreseeable future.