Please ensure Javascript is enabled for purposes of website accessibility

NLRB opts not to appeal notice posting rule

By: Kimberly Atkins//January 17, 2014

NLRB opts not to appeal notice posting rule

By: Kimberly Atkins//January 17, 2014

WASHINGTON — Ending a legal battle over one the most controversial labor law regulations in recent history, the National Labor Relations Board has abandoned plans to seek high court review of two appellate decisions striking down the agency’s notice posting rule.supreme-court

According to a statement released Jan. 6, days after the deadline for filing a petition for certiorari with the U.S. Supreme Court, the board said it had “decided not to seek Supreme Court review of two U.S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most private sector employers to post a notice of employee rights in the workplace.”

The announcement concludes a years-long dispute between the agency and business groups, including the U.S. Chamber of Commerce, which claimed that the agency was engaging in aggressive efforts to extend its reach in workplaces, including those without unionized employees.

“It really was a complete change of course for the NLRB from the type of agency that it was,” said Benjamin P. Glass, a shareholder in the Charleston office of Ogletree, Deakins, Nash, Smoak & Stewart who represented the Chamber in the 4th U.S. Circuit Court of Appeals case Chamber of Commerce of the United States v. NLRB, which struck down the rule.

“The agency was designed to resolve disputes between union organizers and employers in order to maintain stability in the workplace,” Glass said. “The notice posting rule and a number of other actions by the board in the last couple of years really seemed to signal that the NLRB was becoming more of an advocate for union rights.”

The rule required employers to place 11-by-17-inch posters in their workplaces notifying workers of their rights under the National Labor Relations Act — specifically the rights to act together to improve wages and working conditions, to unionize, to bargain collectively with their employer or to refrain from any of these activities.

Failure to comply with the rule would have been deemed an unfair labor practice and would have resulted in the tolling of the statute of limitations for charges of other unfair labor practices and a presumption of anti-union animus that would weigh against the employer in board proceedings.

The rule was finalized in 2011, but was never enforced due to repeated delays resulting from the pending legal challenges, including federal lawsuits filed by employers and business groups.

In May 2013 the D.C. Circuit held in National Association of Manufacturers v. NLRB that the rule infringed on employers’ rights under §8(c) of the NLRA by forcing them to disseminate a message that they did not create.

“[T]he Board’s rule requires employers to disseminate such information, upon pain of being held to have committed an unfair labor practice,” wrote Judge A. Raymond Randolph. “The right to disseminate another’s speech necessarily includes the right to decide not to disseminate it.”

But the 4th Circuit went further, ruling in June 2013 that the NLRA does not give the board the rulemaking authority to impose such a regulation on employers. The court held that the board is empowered only to respond to unfair labor claims and conduct elections.

“[T]he rulemaking function provided for in the NLRA, by its express terms, only empowers the Board to carry out its statutorily defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon request,” wrote Judge Allyson K. Duncan for the unanimous panel in Chamber of Commerce. “Indeed, there is no function or responsibility of the Board not predicated upon the filing of an unfair labor practice charge or a representation petition.”

Now that ruling will stand, and could serve as the basis for future challenges should the board issue new rules that employers claim exceed its authority.

“I do think this means federal appellate courts will be looking carefully at the rulemaking promulgated by the board in the Obama administration,” said Howard K. Kurman, a principal in the Baltimore office of Offit Kurman, who represents employers.

Glass said he does not believe the board’s decision not to petition for certiorari represents any major shift in policy.

“I would like to think that maybe this is an indication that the board is being more deliberate about what their role is and how they are best suited to fill that role,” Glass said. “But I’m cynical enough after 20 years in this business to question whether it will truly be a change in the direction that board is taking.”

The NLRB said in its statement that it will continue efforts to educate workers about their rights under the NLRA, and pointed out that employers are still free to voluntarily post the notice, which can be found on the NLRB’s website, in their workplaces.

“The NLRB remains committed to ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act,” the statement read. “Therefore, the NLRB will continue its national outreach program to educate the American public about the statute.”

Kurman called the idea that employers voluntarily post the notice “ridiculous.”

“Employers were dead-set against the poster from the beginning,” he said. “It went far beyond what was necessary to educate employees about what their rights are under the NLRA.”

Business Law

See all Business Law News


See all Commentary


How Is My Site?

View Results

Loading ... Loading ...