Labor & Employment Law Blog

On May 7, a federal court of appeals in Washington, DC ruled that the National Labor Relations Board cannot require private sector employers across the country to post a workplace poster which advises employees of certain rights under the National Labor Relations Act. Citing free speech concerns and a lack of balance in favoring a unionized workplace, the court struck a further blow against NLRB's proposed posting requirement. National Assn of Manufacturers v. NLRB (DC Cir 05/07/2013)

NLRB had tried to implement the posting requirement in early 2012. Due to litigation and extensions of the deadline, most employers never posted the poster.

The poster at issue speaks of employees’ rights to form and join unions, to protest working conditions, and to be free from retaliation for exercising those rights. The poster does not speak to many labor law rights of employees, including to refuse to support a union, to resign union membership, to remove an incumbent union, to object to how union dues money is spent, or to deauthorize a union's ability to force payment of dues under a union contract.

Given the NLRB's desire to expand awareness of the rights, as stated in the poster, and NLRB's willingness to litigate other controversial labor issues of the day including the authority of the President's recess appointees who make case rulings and regulations, it is expected NLRB will seek review of the court’s ruling on the posting requirement at the US Supreme Court.

The NLRB's appeal of a ruling of the same court rejecting the authority of the NLRB's recess appointees (the Noel Canning case) was filed at the Supreme Court on April 25.

Stay tuned as high level litigation over the scope of NLRB's authority will be a developing issue in the year ahead.