NLRB Union Poster Rule Struck Down By Appeals Court

The California Chamber of Commerce reported in the May 10 Alert Newsletter that a federal court of appeals struck down a National Labor Relations Board (NLRB) rule requiring most companies to post a notice informing employees of their union rights. The controversial poster rule required most private sector employers to put up NLRB-created workplace posters entitled "Employee Rights Under the National Labor Relations Act."

The poster generally informs employees of their rights to organize a union, bargain collectively through representatives chosen by the employees and to make efforts to improve the terms and conditions of their employment.

A three-judge panel for the U.S. Court of Appeals for the District of Columbia said the NLRB violated employers’ free speech rights and overstepped its legal authority.

Judge Raymond Randolph noted that federal law protects "the rights of employers (and unions) not to speak," and that the poster rule was "compelled speech."

The rule, according to the federal court, treats the failure to post the National Labor Relations Act notice "as evidence of anti-union animus in cases involving, for example, unlawfully motivated firings or refusals to hire—in other words, because it treats such a failure as evidence of an unfair labor practice."

The posting requirement was initially scheduled for implementation in November 2011. That deadline was first delayed until April 30, 2012, and then put on hold indefinitely pending the outcome of legal challenges. 

This particular challenge was brought by the National Association of Manufacturers (NAM) and other business groups. 

"Today, manufacturers claim an important victory in the fight against an activist NLRB and its aggressive agenda," said NAM President and CEO Jay Timmons, in a statement. "The poster rule is a prime example of a government agency that seeks to fundamentally change the way employers and employees communicate. The ultimate result of the NLRB’s intrusion would be to create hostile work environments where none exist."

In a separate lawsuit, a federal trial court in South Carolina also concluded in April 2012 that the NLRB lacked the authority to promulgate the posting rule. The NLRB challenged the decision and the case is pending before the U.S. Court of Appeals for the Fourth Circuit. The appeal was heard in March 2013. 

The NLRB has statutory jurisdiction over private sector employers whose activity in interstate commerce exceeds a minimal level.