ABC May 7 welcomed a decision by the U.S. Court of Appeals for the D.C. Circuit to invalidate the National Labor Relations Board’s (NLRB) “Notification of Employee Rights” notice posting rule. A three-judge panel struck down the 2011 rule, primarily on the grounds that it violated free speech rights afforded to employers under the National Labor Relations Act (NLRA). 

“This is great news for employers and employees alike,” said ABC Vice President of Federal Affairs Geoff Burr. “The NLRB’s notice posting rule is a perfect example of how the pro-union board has abandoned its role as a neutral enforcer and arbiter of labor law.”  

ABC General Counsel Maurice Baskin, a shareholder with Littler, argued the case before the appeals court in September 2012. If the NLRB rule was allowed to go into effect, employers would have been forced to display a poster in their workplace that contained a biased and incomplete list of employee rights under the NLRA. 

In its May 7 ruling, the D.C. Circuit concluded that two of three enforcement mechanisms in the notice posting rule violated the free speech provisions under Section 8(c) of the NLRA. The third enforcement was also found to violate the Act. And because all possible enforcement actions violated the NLRA, the court reasoned that the Board would not have promulgated a rule based on voluntary compliance, thus it concluded that the entire rule was invalid.

The notice posting rule had been under an injunction since April 2012 in response to a request by the ABC-led Coalition for a Democratic Workplace, following multiple court decisions at the District Court level. The D.C. Circuit’s action now stands alongside a decision issued in April 2012 by the U.S. District Court for South Carolina, stating that the NLRB does not have the statutory authority to require business owners to post a biased poster. That case is still under appeal in the 4th Circuit. 

The NLRB has not stated whether it plans appeal the D.C. Circuit’s ruling or the 4th Circuit’s eventual decision, if unfavorable. 

COMPLIANCE NOTE: 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 U.S. Department of Labor.