In 2011, the NLRB issued a rule stating that employers subject to its jurisdiction would be guilty of an unfair employment practice if the employer failed to hang a poster on the premises entitled “Notification of Employee Rights under the National Labor Relations Act.”  The proposed poster outlines an employee’s right to join, or not join, a union, among other rights set forth in the NLRA.  The poster also identifies certain illegal employer activity, such as restrictions on the employer’s ability to inquire into a worker’s participation in a union.

The National Association of Manufacturers and other plaintiffs filed suit against the NLRB, claiming that the posting requirement was an unlawful infringement on an employer’s right to engage in dialogue concerning union membership and was, itself, a violation of the NLRA.  This May, the United States Court of Appeals for the District of Columbia Circuit issued an opinion in Nat’l Ass’n of Mfrs. v. NLRB, 717 F3d. 947 (2013) striking down the NLRB’s posting requirement for these notices.  In its decision, the Court found that the rule unfairly converted the failure to post the notice into an unfair employment practice when there was no other evidence of anti-union animus on the employer’s part.

The last day for the NLRB to appeal the Court’s decision to the United States Supreme Court was January 2, 2014.  That date passed with no action from the NLRB.  The Circuit Court’s ruling now stands as the governing law on this issue.  However, it is important to remember that the Court’s decision has no effect on the actual provisions of the NLRA, and employers should be cautioned that any anti-union activity or attempt to infringe upon the union rights of employees may still be challenged as an unfair labor practice.  In addition, each State may have differing laws on posting requirements.  In most situations, you should consult with your employment attorney to ensure that your business is compliant with all applicable employment laws, including any requirements for the posting of notifications in your workplace.