Early in May 2013, a federal appeals court ruled the National Labor Relations Board cannot require businesses to post the NLRA rights poster informing employees about their right to form a union.  The poster and the rule requirements were described in our October 20, 2011 article below, as postponed and reported in our January 2012 update. The NLRB had postponed implementation of the posting rule from January 31, 2012 until April 30, 2012 due to a request by the Court in connection with consolidated lawsuits brought by the National Association of Manufacturers and the National Right to Work Legal Defense and Education Foundation.

The D.C. Court of Appeals ruled the NLRB exceeded its authority when it issued the poster rule.  Judge Karen LeCraft Henderson said the NLRB "simply does not authorize the board to impose on an employer a freestanding obligation to educate its employees on the fine points of labor relations law." Unions and the NLRB may do so, however. The Court found that the NLRB's posting rule violated the National Labor Relations Act and impermissibly infringed on employers' First Amendment rights. Relying on Supreme Court authority, the Court noted that "the First Amendment not only prevents the government from prohibiting speech but also may prevent the government from compelling individuals to express certain views."

For the time being, employers are not required to comply with the NLRB's poster notice.  We will continue to provide updates on future developments regarding this issue.

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