NLRB Posting Requirement Struck Down by Court; Federal Contractors Still on the Hook

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On May 7, 2013, the D.C. Circuit vacated a National Labor Relations Board (“NLRB” or “Board”) rule that would require most private sector employers to display a poster informing employees of their rights under the National Labor Relations Act (“NLRA” or “the Act”), including their right to unionize.

The NLRB’s August 2011 regulation required employers to post a conspicuous notice informing employees of their right to unionize, and made an employer’s failure to comply with the posting an unfair labor practice. The Board argued that it drew its authority to require the posting from Section 6 of the NLRA, which vests authority in the Board to promulgate “rules and regulations as may be necessary to carry out the provisions” of the Act. The district court agreed that Section 6 indeed provided the NLRB with authority to issue the rule, but found that Section 8(c) of the Act precluded the NLRB from making a blanket determination that an employer’s failure to post constitutes an unfair labor practice in every case.

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