Erick Becker
Way back in 2011, the National Labor Relations Board (NLRB) used its rule making authority to require all employers, union and non-union, to post a notice to employees describing their rights – including the right to unionize. Employers were rightly alarmed that this notice requirement was burdensome and could result in an unfair labor practice – a violation of federal law – if the notice wasn’t posted. In addition, the rule was clearly designed to boost union efforts to organize in the 94% of work places that are union free.
Employer groups led by the National Association of Manufacturers immediately filed suit challenging the rule, and implementation was postponed pending the outcome of litigation. After conflicting district court decisions, the Court of Appeals for the D.C. circuit finally weighed in last week. The court ruled that compelling employers to post notices essentially endorsing unionization violates their free speech rights guaranteed under the Act.
However, the NLRB’s posting rule is not quite dead yet. There is another case pending in a different Circuit Court that might have a different outcome, and the matter probably will end up in the Supreme Court. For now, employers should review their current labor law posters, particularly if they were ordered from one of the poster companies. Many of these companies included the NLRB posting in their combined posters after the NLRB rule was promulgated in 2011. If your posters include the NLRB posting, you should order new posters and demand they be provided by your poster company at no cost.
