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Court of Appeals Decisions Will Stick on the NLRB Poster Rule

In August of 2011, the National Labor Relations Board (“NLRB”) approved a poster rule requiring businesses to post notifications reminding workers about their right to unionize. Employers and business groups that felt the rule was one-sided and pro-union subsequently challenged the rule and were victorious in two separate U.S. Circuit Courts.

In Chamber of Commerce v. NLRB, the U.S. Circuit Court of Appeals for the Fourth Circuit ruled that the NLRB did not have the authority to enact the notice rule.  In National Association of Manufacturers v. NLRB, the U.S. Court of Appeals for the D.C. Circuit held that the rule amounted to government-controlled speech and that employers covered by the National Labor Relations Act could not be forced in all circumstances to post workers’ rights. The NLRB is only permitted to address unfair labor practice charges and conduct representation elections, though in recent years they have become increasingly active in fighting for employee workplace rights.

Considering their recent activism, it was a surprise when, on January 6, the NLRB announced they would not be challenging the decisions at the Supreme Court level. With this announcement, it is clear that the NLRB cannot enforce the rule and employers are not obligated to display the poster that reminds workers of their rights. NLRB will continue to offer the poster through its website and employers may voluntarily choose to display it in the workplace.

Employers and HR departments must stay informed of posting requirements from other federal agencies and those required at the state level. If you have questions about your legal posting obligations, contact a labor and employment attorney at McBrayer today.

B. Johnson

Brandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at bjohnson@mmlk.com or at (502) 327-5400.

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

 

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