April 17, 2014

Labor Poster Requirement Struck Down by U.S. Court of Appeals

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit vacated the National Labor Relations Board's (NLRB) Notice Posting rule that required employers subject to its jurisdiction to post a Notice to Employees advising them of their rights under the National Labor Relations Act (NLRA).

The controversial rule had already suffered several major setbacks. The NLRB had previously postponed the effective date of the rule on a couple occasions. Further, in April 2012,  the U.S. Court of Appeals for the District of Columbia Circuit enjoined the rule  until it had the opportunity to consider the merits of the case after the penalty provision of the rule was struck down by the U.S. District Court for the District of Columbia. The U.S. District Court for the District of South Carolina struck down the rule in its entirety, holding that the NLRB lacked the authority to require employers to post notices in the workplace informing employees of their rights under the NLRA.

In Tuesday's ruling, the Court found that none of the NLRB's three enforcement mechanisms for the rule were valid. First, the Court found that Section 8(c) gives employers both a right to speech as long as the speech does not contain threats, as well as the right not to speak.  Second, the Court held that the rule violated Section 8(c) because it made the employer's failure to post the NLRB's notice an unfair labor practice or evidence of anti-union animus in cases involving other types of unfair labor practices. Finally, the Court rejected the NLRB's argument that the statute of limitations period for filing an unfair labor practice charge would toll if an employer has not put up the poster. Based on this, the Court concluded that the entire rule must fall since the NLRB would not issue a rule that depended "solely on voluntary compliance."

Because the rule did not survive on Section 8(c) grounds, the Court did not address whether the rule could survive under Section 6, which gives the NLRB the power to issue rules necessary to carry out the NLRA's  other provisions. However, the two concurring judges, who agreed with the decision based on a Section 8(c) violation, also wrote that they would have found the NLRB's rule invalid under Section 6 as well.

For now, employers no longer have to implement the Notice Posting rule at their workplace. While there is another appeal pending in the Fourth Circuit, the NLRB has stated that it will not implement the rule unless and until the Fourth Circuit or the Supreme Court upholds the rule.

© 2014 Varnum LLP

About the Author

Luis E. Avila, Labor Employment Attorney, Varnum Law Firm

Luis focuses his practice on labor, employment and immigration issues. Luis has a wide range of experience in traditional labor matters, including grievances, arbitrations, collective bargaining negotiations, union drives, and matters in front of the National Labor Relations Board (NLRB) and the Michigan Employment Relations Commission (MERC). Luis has counseled employers on a number of workplace matters, including effective employee handbooks and policies, disciplinary and dispute resolution procedures, discrimination, disability accommodation, wage-hour matters, family medical leave, and...


About the Author

John Patrick White, Varnum Law Firm, Labor Employment Attorney

Pat White's practice concentrates on the full spectrum of civil rights issues, race and gender disability matters, free speech and electronic privacy issues in the workplace. In addition to litigation, he also does traditional labor work, including negotiation and arbitration, both for public and private sector clients. He also maintains expertise in education law, representing school districts, community colleges and colleges and universities, both with respect to employment issues as well...

David E. Khorey, Labor Employment Attorney, Varnum law firm

Dave’s “client-centered” practice involves a variety of labor and employment issues. He provides practical and confidential ongoing advice and consulting on a number of sensitive and complex labor and employment matters, from problem employee situations to multi-facility collective bargaining negotiations. His representative clients include diverse industries (such as automotive, printing,...


About the Author

Richard D. Fries, Varnum Law Firm, Labor Employment Attorney

Rick is a partner in the Kalamazoo office. Since 1981, he has represented employers exclusively in solving labor and employment law problems in the workplace. He devotes most of his time to advising employers about how to avoid workplace crises, comply with state and federal labor and employment laws and regulations, and prevent litigation. He has significant experience counseling employers on how...


About the Author

Dennis M. Devaney, Labor Law Attorney, Varnum Law Firm

For more than 25 years, Dennis has represented clients in labor and employment disputes, in litigation and on legislative and regulatory matters. His labor and employment practice focuses on traditional labor law, including representation of clients with respect to matters arising under the National Labor Relations Act. He also represents employees in defense of discrimination claims and with respect to collective bargaining agreement negotiation and administration. Additionally, he counsels employers on all FMLA, ADA, FLSA, ELCRA and other state and federal employment laws and assists in...


About the Author

Richard A. Hooker, Varnum Law Firm, Labor Employment Attorney

Dick Hooker has had significant experience in traditional labor relations, state/federal agency work, employment litigation, union election campaigns, unemployment insurance taxation matters, and arbitration of employment disputes. He is a facilitative mediator for the U.S. District Court, Western District of Michigan and the Michigan Courts, and he is listed as an...


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