July 1, 2022

Volume XII, Number 182

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National Labor Relations Board's (NLRB) Poster Rule Struck Down by D.C. Circuit

On May 7, the U.S. District Court of Appeals for the District of Columbia struck down a National Labor Relations Board (“NLRB”) ruling that would have required millions of private employers, both union and non-union, to put up posters alerting employees of their rights under the National Labor Relations Act (“NLRA”). The poster informed employees of their right to join and/or form a union, collectively bargain with employers, and act jointly to improve wages or working conditions.

The requirement was scheduled to become effective in April 2012, but the D.C. Circuit Court delayed any employer action until it decided whether the law was enforceable. Under the rule, an employer’s failure to display the poster would be considered an “unfair labor practice” under the NLRA.

After considering the issue, the U.S. Court of Appeals for the D.C. Circuit found the NLRB rule to be a violation of the NLRA’s “free speech” provision. This provision provides employers with the right to communicate with employees about unions as long as the communication is non-threatening or coercive. In the same token, however, an employer is also free to not communicate with employees about unions.  By forcing employers to display the poster or face charges of unfair labor practice, the Court held that the requirement violated the NLRA’s protection of silence guaranteed to employers. The NLRB does have the right to appeal the Court’s decision, but it is unknown at this time if they will choose to do so.

The Court’s ruling is consistent with a 2012 ruling from the U.S. District Court for the District of South Carolina holding that the NLRB had no authority to mandate such a poster. The NLRB appealed to the U.S. Court of Appeals for the Fourth Circuit in that case. It is important for employees to stay abreast of how these cases play out.

© 2022 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.National Law Review, Volume III, Number 150
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