D.C. Court of Appeals Strikes Down NLRB Notice Posting Rule

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the National Labor Relations Board’s “Notice Posting Rule,” which would have required millions of employers to display an “employee rights” poster, is invalid.

Background

 As we informed you in previous editions of our Newsletter, on August 30, 2011, the NLRB published a rule requiring that “[a]ll employers subject to the [National Labor Relations Act] must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with the Board contact information and information concerning basic enforcement procedures[.]”  The rule also would have required that employers who customarily communicate with their employees electronically to publish the notice on their intranet or internet sites.

The poster was designed to inform employees of their right to form, join, or assist a union, to bargain collectively through representatives of their choosing, to discuss terms and conditions of employment through fellow employees or a union, to strike and picket, or to refrain from such activity.  Failure to post the notice would have been deemed an unfair labor practice and would have suspended the six-month limitations period for filing any unfair labor charge unless an employee otherwise had notice of these rights, and permitted the NLRB to consider failure to post the notice as evidence of unlawful motive where motive was an issue in the case.

The Board’s stated motivation for the poster was that union workers now make up only a small portion of the private sector workforce, immigrants are an increasing proportion of the nation’s population and are “unlikely to be familiar with their workplace rights,” and that high-school students were unfamiliar with labor laws.

The National Association of Manufacturers and others filed a lawsuit seeking to prevent enforcement of the rule and on April 17, 2012, the U.S. Court of Appeals for the D.C. Circuit suspended enforcement of the rule while its validity was decided.

D.C. Circuit’s Decision

In its May 7 decision, the Court of Appeals held that the notice posting rule violated Section 8(c) of the NLRA, which was designed to give employers the right to speak to employees about unionization.  The Court found the notice-posting requirement violated an employer’s Constitutional First Amendment right not to speak.  The Court also found that the NLRB went beyond its authority in delaying the six-month statute of limitations for unfair labor practice charges when the notice was not posted.

The NLRB has not stated whether or not it will appeal the decision.

Impact on Employers

For now, employers need no longer worry about the notice posting rule.  If the NLRB does not appeal and permits the Court’s decision to stand, it will permanently remove the specter of the posting requirement.

If you have questions about this or other issues involving the NLRB, please contact a McMahon Berger attorney.

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