On Tuesday, May 7, 2013, a three Judge panel of the United States Court of Appeals for the District of Columbia Circuit Court unanimously rejected the National Labor Relations Board (NLRB) rule requiring private sector employers to post notices informing employees of their rights under the National Labor Relations Board Act (NLRA) to organize and join unions. The case was an appeal by the National Association of Manufacturers and other employer groups of District of Columbia District Court Judge Amy Jackson’s opinion that the Notice Posting Rule was a valid exercise of the NLRB’s authority. The Court of Appeals decision held that all three of the NLRB’s methods of enforcing the rule were invalid. The Court of Appeals ruled that requiring employers to post the notice violates an employer’s right to free speech, which is guaranteed in the NLRA.

The Court pointed out that an employer is free to communicate with its employees as long as the communication does not contain prohibited threats or promises, and that an employer is also free to refrain from communicating. The Board’s methods of enforcing the posting rule by treating a failure to post as an unfair labor practice, considering the failure to post as evidence of anti union animus, and tolling the Act’s six month statute of limitations for filing unfair labor practice charges at that employer until the notice was posted, were all determined to be impermissible restrictions on an employer’s right to free speech under the NLRA.