NLRB's Poster Rule Is Dead (For Now)

Over two years ago, the National Labor Relations Board (NLRB) issued a final rule that would have required all private employers subject to the National Labor Relations Act (Act) to display a sizable poster about employees' rights under the Act. But as we told you in a September 13, 2011 update, this rule was met with much resistance from employers, in part because of its controversial content that some believed was pro-union (the poster failed to mention employees' rights to decertify a union, not to pay union dues in right-to-work states and to object to dues unrelated to representation).  The proposed regulation was quickly challenged in court by several employer-led groups like the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace. 

As a result of these legal challenges, two federal Courts of Appeals (the Fourth Circuit and the District of Columbia) held that the NLRB's poster rule was impermissible. One court (the Court of Appeals for the District of Columbia) found that the rule violated employers' free speech rights under the First Amendment, and the other (the Court of Appeals for the Fourth Circuit) found that the NLRB did not have the authority under the Act to issue the rule. The NLRB could have sought the U.S. Supreme Court's review of these decisions. However, the time to do so has now expired, and the NLRB did not appeal either decision. 

Because the Board chose not to appeal either decision, the poster rule is effectively dead. However, now that the NLRB is operating with a full contingent of properly confirmed members, it is possible that in 2014 the NLRB might reconsider its poster regulation and reissue a rule that has a better chance of being judicially upheld.

If you have any questions about this matter, its impact on your business or any other labor matters, please contact any of Faegre Baker Daniels' labor lawyers.