NLRB’s Poster Rule Struck Down by D.C. Circuit

On May 7, the U.S. District Court of Appeals for the District of Columbia struck down a National Labor Relations Board (“NLRB”) ruling that would have required millions of private employers, both union and non-union, to put up posters alerting employees of their rights under the National Labor Relations Act (“NLRA”). The poster informed employees of their right to join and/or form a union, collectively bargain with employers, and act jointly to improve wages or working conditions.

The requirement was scheduled to become effective in April 2012, but the D.C. Circuit Court delayed any employer action until it decided whether the law was enforceable. Under the rule, an employer’s failure to display the poster would be considered an “unfair labor practice” under the NLRA.

After considering the issue, the U.S. Court of Appeals for the D.C. Circuit found the NLRB rule to be a violation of the NLRA’s “free speech” provision. This provision provides employers with the right to communicate with employees about unions as long as the communication is non-threatening or coercive. In the same token, however, an employer is also free to not communicate with employees about unions.  By forcing employers to display the poster or face charges of unfair labor practice, the Court held that the requirement violated the NLRA’s protection of silence guaranteed to employers. The NLRB does have the right to appeal the Court’s decision, but it is unknown at this time if they will choose to do so.

The Court’s ruling is consistent with a 2012 ruling from the U.S. District Court for the District of South Carolina holding that the NLRB had no authority to mandate such a poster. The NLRB appealed to the U.S. Court of Appeals for the Fourth Circuit in that case. It is important for employees to stay abreast of how these cases play out.

 

 

W. Chapman Hopkins is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Hopkins concentrates his practice in litigation, with a focus on employment, business, and equine law. He is located in the firm’s Lexington office and can be reached at chopkins@mmlk.com or at (859) 231-8780.

This article is intended as a summary of newly enacted federal law and does not constitute legal advice.

Article originally appeared on McBrayer’s Employment Law Blog, mcbrayeremploymentlaw.com. 

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W. Chapman Hopkins is an associate in the Lexington, Kentucky office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. He is a member of the firm’s Commercial and Business Litigation practice group, as well as the Equine and Gaming Law, Administrative Law, and Employment Law groups. Chapman has experience in navigating clients through all facets of their litigation matters. He frequently advocates for clients in complex litigation disputes involving a broad range of business and employment related cases. As a lifelong owner and breeder of Thoroughbred horses, Chapman has a particular focus on equine law. Calling upon his legal and practical knowledge of the industry, Chapman successfully represents thoroughbred farms and industry professionals in both transactional and litigation matters. He also serves as outside legal counsel for race industry entities such as the Kentucky Horse Racing Commission. Chapman is originally from Lexington, Kentucky and graduated with honors from Transylvania University with a B.A. in Finance and Economics in 2006. He graduated from the University of Kentucky College of Law with his Juris Doctorate in 2009. He is an active member of the community and participates in several professional and community organizations including the following: the Kentucky Bar Association (Young Lawyers Division), the Lexington Charity Club (Board Member), the Bluegrass Conservancy and the Thoroughbred Owners and Breeders Association. In addition, Chapman graduated from the Leadership Lexington program in 2011.

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