After suffering defeat last year when the D.C. and Fourth Circuit Courts held the National Labor Relations Board’s (“Board”) rule forcing employers to post an employee rights notice was invalid, the Board has given up. It will not appeal these decisions to the U.S. Supreme Court.
The rule would have forced employers to post an 11-inch by 17-inch poster detailing the rights of workers to unionize. This regulation was deemed an overreach of the agency’s authority by both federal courts. The D.C. Circuit analyzed the rule under the First Amendment and held employers have the right to not express pro-union views through posting the notice. The Fourth Circuit focused on the narrow scope of the Board’s authority, to address unfair labor practice charges and conduct representation elections, not to proactively make rules such as this.
Employers can now breathe a sigh of relief that this fight is over. Keep in mind, however, that federal contractors still must post an employee rights notice under an Executive Order that was not impacted by either of these two decisions.
Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
