Jan 24, 2014

NLRB Calls It Quits on Its Notice Posting Rule

In what will surely be considered a victory for private employers, the National Labor Relations Board (“NLRB”or the “Board”) decided not to pursue any further attempts to revive the notice posting rule it initially proposed in August of 2011.  The rule would have required private sector employers to conspicuously display an 11 by 17-inch poster explaining the rights of workers to unionize and collectively bargain over wages and working conditions. 

The rule was scheduled to take effect in 2011 but was postponed until January 31, 2012 due to significant criticism and legal challenges from the National Right to Work Legal Defense and Education Foundation, the U.S. Chamber of Commerce, the National Federation of Independent Business, the Coalition for a Democratic Workplace, and the National Association of Manufacturers.  The posting requirement was again delayed after the U.S. District Court for the District of Columbia demanded that the NLRB postpone the effective date pending the resolution of any legal challenges.  Otherwise, the court would enjoin the rule’s implementation.

In May of 2013, the D.C. Circuit invalidated the rule in National Association of Manufacturers, et al. v. NLRB, reasoning that the rule effectively coerced employers to disseminate the Board’s speech that employers had a right not to disseminate under the First Amendment.  The court aptly quoted the Supreme Court’s decision in Pacific Gas & Electric Company v. Public Utilities Commission by stating, “all speech inherently involves choices of what to say and what to leave unsaid.”  The court later dismissed the Board’s petition for review. 

That same month, the Fourth Circuit struck down the posting rule in Chamber of Commerce, et al. v. NLRB, albeit for different reasons.  The court reasoned that Congress never intended to grant such rulemaking authority to the NLRB, as evidenced by the legislative history of the National Labor Relations Act (the “Act”) and the failure to expressly charge the Board with informing employees of their rights under the Act. 

The Board’s only remaining legal recourse was to petition the Supreme Court for review.  Apparently recognizing its limited chance of success, the Board failed to file its petition by the January 2, 2014 deadline.  Employers can breathe a sigh of relief knowing that they will not be subjected to the NLRB’s posting requirements in the near future.

However, employers should not let down their guard just yet.  Despite the fact that unionized workers comprised just 7.3% of private-sector employees in 2012, the NLRB’s decision not to seek Supreme Court review may be an attempt to focus its efforts in other areas that may significantly impact employers in the future.  If you have any questions regarding these recent developments, please do not hesitate to contact your Labor and Employment Counsel at Smith, Gambrell & Russell, LLP.


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