On May 7, 2013, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) invalidated the National Labor Relations Board (“Board”) August 2011 rule requiring all employers subject to the National Labor Relations Act (“NLRA”) to display a poster informing employees of their unionization rights. This decision comes over a year after the court issued a temporary injunction, putting the implementation date on hold until legal challenges about whether the NLRB overstepped its authority were resolved.
The D.C. Circuit found that the Board’s notice posting rule violates Section 8(c) of the NLRA because it makes an employer’s failure to post the Board’s notice an unfair labor practice and because such failure can be used as evidence of anti-union animus in another unfair labor practice (such as unlawful firings or refusals to hire). The court also considered the First Amendment implications of the rule and suggested that the First Amendment prohibited the Board from compelling employers to disseminate the Board’s carefully crafted speech.
Although more litigation on this issue is anticipated, for now, there is no obligation for employers to post the notice issued by the NLRB.
If you have any questions related to the NLRB or the NLRA, please contact any of the attorneys at Royal LLP at (413) 586-2288.