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U.S. Court of Appeals Invalidates NLRB Posting Requirement

Labor and Employment Alert | May 9, 2013
By: John K. Baker and George C. Morrison

We previously notified you in an April 2012 News Alert that the United States Court of Appeals for the District of Columbia issued an emergency injunction prohibiting the NLRB’s enforcement of new notice and posting requirements, which required both public and private employers, union and non-union,  to post an official notice that contains a summary of employee rights established by the National Labor Relations Act. This week, a three-member panel of the Court vacated the NLRB’s Notice and Posting Rule.  As a result, public and private employers need not post the NRLB’s Notice.

The D.C. Circuit held that enforcement of the  posting Rule would impermissibly force employers to speak to its employees about topics they might prefer not to address, such as an employees’ right to organize, picket, and strike.  The Court held all three of the Rule’s enforcement methods invalid, including: (1) that an employer that fails to post the Notice commits an unfair labor practice; (2) that an employer’s failure to post the Notice is evidence of anti-union animus; and, (3) that failure to post would toll the NLRA’s six month statute of limitation period for filing an unfair labor practice charge. 

Initially focusing on the right to free speech, the Court noted “Just as the First Amendment may prevent government from prohibiting speech, the Amendment may prevent the government from compelling individuals to express certain views . . . . ”  The Court relied upon this Constitutional principle and declared,  “Like the freedom of free speech guaranteed in the First Amendment, §8(c) necessarily protects — as against the Board — the right of employers (and unions) not to speak.”  On this basis, the Court invalidated the enforcement provisions of the Rule and determined that the Board did not have authority to extend the statute of limitations period.  A concurring opinion further expressed a view that the NLRB did not have the authority to promulgate the Rule.

In light of the Court’s decision, the Posting Rule remains invalid.  The Board has not indicated whether it will appeal the decision to the United States Supreme Court.  We will continue to update you on any further developments.

For more information regarding this alert, please contact John K. Baker (610.782.4913; bakerj@whiteandwilliams.com), George C. Morrison (610.782.4911; morrisong@whiteandwilliams.com) or any member of our Labor and Employment Law Group.

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
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