October 21, 2021

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D.C. Circuit Court Overrules National Labor Relations Board (NLRB) Notice Posting Ruling

On May 7, the U.S. Court of Appeals for the D.C. Circuit issued a long-awaited ruling regarding the National Labor Relations Board’s “notice posting” rule. That rule, originally issued in August 2011, would have required almost all private-sector employers to post a notice in the workplace informing employees of their right to form and join unions, and otherwise engage in protected, concerted activity such as discussing terms and conditions of employment with other employees. Many employers and the U.S. Chamber of Commerce objected to making any such posting and also felt that the posting ordered by the NLRB was not balanced and could encourage unionization. Under the NLRB’s promulgated rule, failing to post the notice was itself an unfair labor practice and also would toll the statute of limitations indefinitely for any other unfair labor practices committed by employers who failed to post.

The D.C. Circuit stuck down the NLRB’s rule in its entirety. It first found that the notice rule violated section 8(c) of the National Labor Relations Act, which is widely known as the “employer free speech” provision and was designed to mimic the First Amendment. The D.C. Circuit held that it is well established under other court decisions that “free speech” includes both the right to speak as well as the right to refrain from speaking. By requiring an employer to post a notice informing employees of their right to unionize, and creating a new unfair labor practice for refusing to post the notice, the court concluded that the rule violated employers’ free speech rights to remain silent about unions. The D.C. Circuit also found that provisions of the rule preventing the statute of limitations from running until the notice was posted was an attempt by the NLRB to change the National Labor Relations Act in a way that Congress did not intend.

For now, the requirement that employers post the NLRB’s notice is of no effect. But it remains to be seen how the U.S. Court of Appeals for the Fourth Circuit will rule on a case involving the same issue. If the Circuits split on the issue, and even if they do not, the issue could well be taken up by the U.S. Supreme Court.

The D.C. Circuit’s ruling has no impact on the requirement under Executive Order 13496 that most federal contractors with contracts having a value of $10,000 or more post a similar Department of Labor notice. That order was issued in January 2009 and remains in effect.

© 2021 Vedder PriceNational Law Review, Volume III, Number 149
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About this Author

Kenneth F. Sparks, Vedder Price Law Firm, Labor employment attorney
Shareholder

Kenneth F. Sparks is a shareholder with over 20 years of experience in labor and employment matters.  He represents and advises private and public employers in complicated labor law and litigation matters nationwide. Among his areas of concentration are union organizing and collective bargaining, including development and implementation of integrated responses to all of the litigation, publicity, and strike matters that can and often do become a part of organizing and collective bargaining.  He has negotiated numerous collective bargaining agreements, tried cases before the National Labor...

312-609-7787
Mark L. Stolzenburg, Vedder Price Law Firm, Labor Employment Attorney
Shareholder

The primary focus of Mr. Stolzenburg's practice is labor-management relations.

He negotiates collective bargaining agreements, represents employers in labor arbitrations, counsels employers on day-to-day issues regarding the collective bargaining relationship (such as strikes, grievances and interpreting collective bargaining agreements), assists employers with union organizing and decertification campaigns, represents employers before the National Labor Relations Board, handles labor-related litigation in federal and state courts and represents...

312-609-7512
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