The U.S. Court of Appeals for the D.C. Circuit Sept. 4 became the second court to deny a request
by the National Labor Relations Board (NLRB) to review a decision to invalidate the NLRB’s August 2011 “Notification of Employee Rights” rule. Under the rule, employers would have been required to display a poster in their workplace that contained a biased and incomplete list of employee rights under the National Labor Relations Act (NLRA).*
The D.C. Circuit’s denial came less than a month after the U.S. Court of Appeals for the Fourth Circuit denied a similar request
on Aug. 12.
A three-judge panel for the D.C. circuit invalidated the notice posting rule May 7
, primarily on the grounds that it violated free speech rights afforded to employers under the NLRA, supporting ABC’s arguments. The fourth circuit court ruled June 14
the NLRB exceeded its authority when it adopted the rule but said it did not need to address the free speech issue because the NLRB clearly lacked the authority to promulgate the rule in the first place.
ABC participated in oral arguments
against the rule in the D.C. Circuit appeals court in September 2012 stating it would force some 6 million employers around the country to communicate a pro-union message to their employees for the first time in the history of the NLRA. ABC also argued the board cannot show that Congress expressly or implicitly delegated authority to issue the rule and that it violates the plain language of numerous provisions of the NLRA Act, including Section 8(c), which states “expressing of any views shall not constitute or be evidence of an unfair labor practice.”
The notice posting rule has been under an injunction since April 2012
in response to a request by the ABC-led Coalition for a Democratic Workplace.
This ruling does not change the compliance requirements for federal contractors under Executive Order 13496
(or its subsequent 2010 implementing regulations) to post a similar notice from the DOL.