eLABORate: National Labor Relations Board Concedes Defeat on Notice Posting Rule

January 08, 2014

On January 6, 2014, the National Labor Relations Board ("NLRB") issued a press release announcing its decision to not seek U.S. Supreme Court review of two U.S. Court of Appeals' decisions invalidating the NLRB's rule requiring private employers to post notice of employee union organizing rights in the workplace. The NLRB's concession of defeat on the notice posting rule is a victory for the approximately six million private employers in the U.S. who would have been subject to the rule.

The NLRB, after notice and receipt of comments, promulgated the notice posting rule on August 30, 2011. This rule required employers subject to the National Labor Relations Act ("NLRA") to post an official NLRB notice, in the work place and/or on the employer's website, informing employees of their rights under the NLRA, including that: the NLRA guarantees the right of employees to organize and bargain collectively with their employers; employees may engage in protected concerted activity or to refrain from engaging in such activity; and employees are protected from certain types of employer and union misconduct. In addition, the proposed notice informed employees of the right to contact the NLRB and provided the NLRB's contact information, as well as basic NLRB enforcement procedure. The NLRB's notice posting rule contained an enforcement mechanism which rendered an employer's failure to post the notice an unfair labor practice in violation of the NLRA.

Following the enactment of the NLRB's notice posting rule, several pro-business groups challenged the rule in federal courts. Two of the cases challenging the rule reached each the U.S. Court of Appeals for the D.C. Circuit and the U.S. Court of Appeals for the Fourth Circuit, both of which invalidated the rule, but on different legal grounds.

In National Association of Manufacturers, et al. v. NLRB, 717 F.3d 947 (D.C. Cir. 2013), the D.C. Circuit struck down the notice posting rule as a violation of Section 8(c) of the NLRA. The court reasoned that Section 8(c) precludes the NLRB from finding noncoercive employer speech to be an unfair labor practice or evidence thereof, and the notice posting rule impermissibly authorized the NLRB to find that an absence of employer speech, i.e. the failure to post the required NLRB notice, constituted an unfair labor practice.

Just a month later, in Chamber of Commerce of U.S. v. NLRB, 721 F.3d 152 (4th Cir. 2013), the Fourth Circuit invalidated the NLRB notice posting rule, but on the basis that the NLRB lacked authority under NLRA Section 6 to enact the notice-posting requirement. In reaching this decision, the Fourth Circuit emphasized that the NLRB's authority under Section 6 is reactionary, not proactive. In addition, the court noted the absence of any legislative intent to empower the NRLB to enact the notice posting rule.

The NLRB sought rehearing in both cases, and it was denied in both. Thus, the NLRB's last chance to save the notice posting rule was through filing a writ of certiorari to the U.S. Supreme Court by January 2, 2014. This date passed with no filing from the NLRB, and a few days later the NLRB conceded the defeat of its rule on its webpage. As a result, employers are currently under no obligation to post the NLRB's notice.