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That’s That . . . We Hope.

Back in 2010, the National Labor Relations Board (NLRB) proposed a poster rule.  On August 30, 2011, after receiving some 7,000 comments on the proposed rule, the NLRB published a final rule. You remember the poster rule, we talked about it here and here and here and here and even a couple of more times. If you want to see all the posts, click on the NLRB tag on the sidebar.

Anyway, as you all know by now, the poster rule would have required you to display a poster that is “11 inches by 17 inches and in a type size and format the Board prescribes” in a conspicuous place. The poster was required to “inform employees of their right to form, join, or assist a union; to bargain collectively through representatives of their choosing; to discuss wages, benefits, and other terms and conditions of employment with fellow employees or a union; to take action to improve working conditions; to strike and picket; . . . “ According to the rule, failing to display the poster was an unfair labor practice.

Using First Amendment analysis to examine section 8(c) of the National Labor Relations Act, the Court of Appeals for the D.C. Circuit held that section 8(c) “precludes the Board from finding non-coercive employer speech to be an unfair labor practice or evidence of an unfair labor practice.” The Court went on to say “Like the freedom of speech guaranteed in the First Amendment, section 8(c) necessarily protects . . . the right of employers (and unions) not to speak.”

So what does this mean for all of you employers out there?  No poster any time soon.  The issue is still pending before the Fourth Circuit Court of Appeals, and assuming they come down the same way, it is unlikely that the Supreme Court is going to take this case.  So, that’s that. At least we hope it is.