content top

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


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.”

Legal Disclaimer

Please note that the materials contained within this web site have been prepared by Jennings, Strouss & Salmon, P.L.C. for informational purposes only so that readers may learn more about the firm, the services it provides the background of its attorneys, and recent developments in the law. These materials do not constitute, and should not be considered, legal advice, and you are urged to consult with an attorney on your own specific legal matters. Transmission of the information contained in the Jennings, Strouss & Salmon web site is not intended to create, and receipt by the reader does not constitute, an attorney-client relationship with Jennings, Strouss & Salmon or any of its individual attorneys. While we would certainly like to hear from you, we cannot represent you until we know that doing so will not create a conflict of interest. Please do not send us any information about a matter that may involve you until you receive written authorization to do so from one of our attorneys. Unless otherwise indicated in individual attorney biographies, attorneys resident in the firm's various offices are not certified by the Board of Legal Specialization or a similar body of any State. This site may contain hyperlinks to Web sites operated by parties' independent from Jennings, Strouss & Salmon. Such hyperlinks are provided for your reference only. Jennings, Strouss & Salmon does not control such Web sites, and is not responsible for their content. Jennings, Strouss & Salmon's inclusion of hyperlinks to such Web sites does not imply any endorsement of the material on such Web sites or any association with their content. Your access and use of such sites, including information, material, products, and services therein, shall be solely at your own risk. Further, because the privacy policy of this Site is applicable only when you are on this Site, once linked to another Web site, you should read that site's privacy policy before disclosing any personal information.