As Business Week reports this week, the US Court of Appeals for the District of Columbia struck down the poster requirement created by the National Labor Relations Board. For those who do not know or do not remember, in August 2011, the NLRB adopted a rule requiring private businesses to post a notice of the rights employees have to unionize.
The poster was initially required to be posted as of November 14, 2011, but the NLRB postponed the start date several times. When suit was filed, the NLRB decided to wait until the resolution of the litigation to set a new deadline.
It’s a good thing the NLRB waited. The rule is now invalid in the area covered by the DC Circuit Court of Appeals and has been found invalid by a US District Court in South Carolina with an appeal pending before the 4th Circuit Court of Appeals.
It may be boring legal reasoning which some are not interested in, but the DC Circuit overruled the NLRB requirement for two reasons. The first we can all understand: free speech. The Court found that employers have the right not to be forced to speak about employee rights to unionize. Second, the Court found that the NLRB overstretched its authority because the penalties it imposed were beyond NLRB power.
What does this mean for Texas employers? We reside under the jurisdiction of the 5th Circuit Court of Appeals – not the DC Circuit or the 4th Circuit. There is not presently an appeal pending in the 5th Circuit, but, with the delay imposed by the NLRB to wait for the other cases to be resolved, employers here are safe for the moment.