NLRB Notice Posting Struck Down

The United States Court of Appeals for the D.C. Circuit yesterday issued a ruling striking down the National Labor Relations Board’s (“NLRB”) notice of employee rights posting requirement in its entirety. This ruling impacts over 6,000,000 employers nationwide which would have been subject to the posting requirement.

In August 2011 the NRLB promulgated a rule requiring all employers subject to the National Labor Relations Act (“NLRA”) to post a prescribed “Notification of Employee Rights under the National Labor Relations Act.” The Notice would have advised employees of their rights to organize a union, form, join or assist a union, bargain collectively through representatives, discuss wages, benefits and union organizing, take action with others regarding working conditions, strike or picket, or choose not to engage in any of these activities. The Notice was widely supported by labor unions and assailed by most employer groups as one-sidedly pro-union. The National Association of Manufacturers and other trade groups brought suit against the NLRB seeking to have the posting requirement vacated. In a unanimous decision, the D.C. Circuit ruled that the Notice posting requirement violated section 8(c) of the NLRA, which protects employers’ free speech rights. In a concurring opinion, two judges of the three judge panel also expressed the view that the rule requiring the Notice posting exceeded the NLRB’s rule making authority under the NLRA.

While the NLRB may attempt to take the matter to the Supreme Court, for now no notice posting requirement exists.

Benesch is proud to have served as lead counsel to the National Association of Manufacturers in this case.

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