Client Alert Update: NLRB Union Notice Rule Struck Down by Federal Appeals Court

 We have previously reported about the National Labor Relations Board (the “NLRB”) and its proposed posting requirement.  The proposed rule would have required eligible employers to post a notice educating employees about the right to form a union and other available protections afforded by Section 7 of the National Labor Relations Act.  Under the proposed rule, an employer’s failure to comply with the posting requirement could support an unfair labor practice charge, could subject the employer to a finding that the failure to post the notice is evidence of anti-union animus, and could extend the six-month statute of limitations for bringing an unfair labor practice charge.

Fortunately for employers, the United States Court of Appeals for the District of Columbia Circuit struck down the NLRB’s rule in its entirety.  The court relied primarily on Section 8(c) of the Act (the “free speech” provision), which allows employers to advise employees of their view on unions as long as it is not done in a coercive manner.  The court also struck the rule down because there was no evidence that Congress ever intended to allow the Board to amend the Act’s statute of limitations. 

At least for now, employers are not required to post the NLRB’s notice. There remains, however, the possibility of further appeal to the United States Supreme Court, and a separate legal challenge to the NLRB’s posting rule is pending in the Court of Appeals for the Fourth Circuit. We will keep you “posted.”