Member Becker, Tear Down That Poster!

By John Alan Doran

The NLRB exceeded its authority when it adopted its August 2011 rule requiring employers to post a new Notice informing employees of their rights under the National Labor Relations Act. In August 2011, the NLRB finalized a rule that required all employers to post a Notice to all employees specifically describing employee rights under the NLRA. Not surprisingly, given the composition of the NLRB at the time, the Notice did not include the employee rights to decertify unions, to refuse to pay dues in right-to-work states, or to object to dues that exceed the amount necessary for purely representational purposes. The 2011 Notice rule established penalties for employers who failed to post the one-sided notice.

The D.C. Circuit Court has held that the Notice rule violated Section 8(c) of the NLRA because it punished employers that refused to post the Board’s ideological view of NLRA rights, while Section 8(c) of the NLRA makes clear that employers cannot be punished for posting information about the NLRA unless the information contains threats of reprisal or force, or promises some benefit. National Association of Manufacturers v. NLRB.  This temporarily resolves the poster issue. We say “temporarily” because the Fourth Circuit Court of Appeals will soon be ruling on the very same question. While we await the Fourth Circuit’s ruling on the issue, we remind employers that the Notice rule is currently on hold due to an injunction.

This poster war seems much ado about nothing, particularly given the time employees actually spend perusing employer bulletin boards already overburdened with state and federal employment notices. But the case goes to the heart of the NLRB’s rulemaking authority at a time when many argue that the NLRB has, simply put, gone wild.

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