Alert: NLRB poster requirement struck down by federal appeals court

A federal appeals court has invalidated a rule published by the National Labor Relations Board (NLRB) in August 2011, which required all employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA). Although the NLRB originally fast-tracked the requirement for employers to post the notice, the rule has been on hold since April 2012, pending the outcome of legal challenges. Most employers objected to the NLRA poster because it presented a one-sided view of labor rights, informing employees of their right to form, join or assist a union; collectively bargain with their employer; discuss wages, benefits and other terms of employment with fellow employees; strike or picket; and enforcement options for employees who believed their rights have been violated. If an employer failed to post the notice, the Board had authority to charge the employer with an unfair labor practice or suspend the normal six-month statute of limitations for an employee filing a claim.

The court’s rationale for striking down the NLRB’s poster requirement hinged primarily on the enforcement mechanisms being used. The court ruled that the NLRB violated employer free speech rights by requiring them to post the notice or face an unfair labor practice charge. The court also found no legal authority that allowed the Board to suspend the statute of limitations for failure to post the notice. Since the court held that the enforcement portions of the NLRB’s rule were invalid, the entire rule (including the poster requirement) also had to be struck down (National Association of Manufacturers v. NLRB, D.C. Cir, May 7, 2013). 

Tips: The legal reasoning invalidating this rule does not come as a surprise to Vigilant, who spoke up on behalf of employers by submitting comments when the Board proposed the rule. Fortunately for employers, the NLRB’s lack of authority for certain actions has not gone unnoticed. This case marks an increasing trend from federal courts who have been rolling back many of the aggressive actions the NLRB has taken during the past few years.

Employers who have been tracking the developments of this case should have already known not to post the NLRB notice; however, if you have it posted in your workplace, today’s ruling means you can remove the NLRA poster for good. Keep in mind, though, the Board is likely to appeal this decision to the U.S. Supreme Court, so the poster requirement issue may be revived in the future.

Covered federal contractors should note that this ruling does not invalidate their obligation to post the Department of Labor poster in their workplace, which also discloses employee rights under the NLRA.