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D.C. Court of Appeals Strikes NLRB “Poster” Requirement

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By Keith F. Overholt

The U.S. Court of Appeals for the District of Columbia Circuit ruled that the National Labor Relations Board (NLRB) exceeded its statutory authority when it promulgated a rule requiring businesses to display a poster informing employees of their right to form or join a union. The rule would have required more than 6 million employers, mostly small businesses, to display an 11” x 17” notice onsite in a prominent location explaining the rights workers have to join a union and bargain collectively to improve wages and working conditions. Failure to post the notice would constitute an unfair labor practice.

Many trade and business organizations filed complaints in the district court, claiming that the NLRB’s rule violated the National Labor Relations Act (NLRA) and First Amendment to the Constitution. The NLRB defended the rule asserting enforcement was necessary because unions represent only a small percentage of the private workforce, immigrants are unlikely to be familiar with their workplace rights, and recent high-school graduates entering the work force are not familiar with labor laws.

D.C. Court of Appeals Judge Karen LeCraft Henderson wrote, “Even assuming these speculative assertions have some factual basis and, as well, that providing such information is ‘necessary to carry out’ the Act’s provisions, there is nothing in the text of the NLRA to suggest the burden of filling the ‘knowledge gap’ should fall on the employer’s shoulders. Unions and the NLRB are at least as qualified to disseminate appropriate information—easily and cheaply in this information technology age—and in fact already do so.”

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