D.C. Circuit Court Invalidates NLRB Poster Rule


On May 7, 2013, the D.C. Circuit Court of Appeals ruled that the National Labor Relations Board’s poster rule was unenforceable. The NLRB rule required employers to display a poster with information related to employees’ right to unionize. In April 2012, the D.C. Circuit Court provided employers with a reprieve from having to display the poster until it ruled on whether the law was enforceable. In light of recent ruling, employers nationwide are not required to display the NLRB poster. 

In finding the poster rule unenforceable, the D.C. Circuit Court held that the NLRB’s rule violated Section 8(c) of the National Labor Relations Act, which provides employers the right to speak about their opinions of unions as long as the speech does not contain threats and also provides employers the right to remain silent. The court ruled that it would be a violation of Section 8(c) to interpret the employer’s silence in the form of refusing to display the poster as an unfair labor practice or as evidence of anti-union animus.

In addition to the posting requirement, the NLRB poster rule stated that if an employer failed to display the union rights poster, the statute of limitations for an employee to bring an unfair labor practice claim was tolled for six months. The D.C. Circuit Court, however, held that this section of the NLRB rule was invalid as well. The NLRB has the option to appeal this decision to the Supreme Court.

Bernstein Shur will continue to update you on any developments related to this rule and the NLRB. For more information, please contact Glenn Israel in Maine, at 207 228-7291 or gisrael@bernsteinshur.com, or Karen Aframe in New Hampshire, at 603 623-8700 or kaframe@bernsteinshur.com.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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