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Court Strikes Down NLRB Posting Requirement

Looks like you're not going to have to put up that pro-union poster after all. A Washington, DC federal appeals court has struck down the National Labor Relations Board's bid to require employers to put up a special notice that outlines workers' rights to organize.

The proposal has been a bone of contention between business groups and the Labor Board since it was first introduced in 2010. The notice would have included language explaining workers' rights to form unions, strike, and bargain collectively. Failure to post the notice would have been considered an unfair labor practice.

The National Association of Manufacturers (NAM) challenged the NLRB proposal, saying the agency had overreached its powers. In March 2012, a federal district judge allowed the rule to stand, but stripped the NLRB of its ability to punish employers who didn't post the notice.

That wasn't enough for the NAM, however, which appealed the decision. Last April, the DC appeals court issued an injunction delaying the enforcement of the posting rule until the case could be heard.

On May 7, 2013 the court ruled that under the First Amendment, employers have just as much right to not disseminate views they didn't support as they do to express their own views. Thus, ordering companies to post the NLRB notice would violate the law.

While this ruling is a "win" for employers, it is important to remember that employers that have contracts or subcontracts with federal government agencies remain obligated under Executive Order 13496 to post a similar notice informing employees of their rights under the National Labor Relations Act (NLRA).

Ultimately, the NLRB may petition the Supreme Court to review the decision. For now, non-government contractors and employers need not post notices of employees' rights under the NLRA, including their right to organize.

SESCO Management Consultants is available to assist with your human resource issues. You may contact us by phone at 423-764-4127 or by email at