On January 6, 2014, the NLRB announced it will not seek U.S. Supreme Court review of 2 federal circuit court decisions invalidating the agency's union rights Notice Posting Rule.
This rule would have required most private sector employers to post a notice of employee rights confirming how they can: a) join labor unions and b) engage in other "concerted activity" under the federal labor law, the NLRA. By not challenging the 2 decisions that vacated the controversial rule, the rule is "null and void."
The 2 appellate court decisions vacated the NLRB rule on different grounds. First, on May 7, 2013, the D.C. Circuit concluded in Nat'l Ass'n of Mfrs. v. NLRB, Case No. 12-5068 (D.C. Cir. May 7, 2013), that the rule violated employers' free speech rights as protected by Sec. 8(c) of the Act.
Second, on June 14, 2013, the Fourth Circuit concluded in Chamber of Comm. of the U.S. v. NLRB, Case No. 12-1757 (4th Cir. June 14, 2013), that the NLRB exceeded its authority when issuing the challenged rule. The NLRA rulemaking function only empowers the NLRB to carry out its statutorily defined reactive roles when investigating and handling unfair labor practice charges and conducting union representation elections.
While the NLRB backed down, it also announced that the poster may be viewed, displayed, and disseminated voluntarily by employers. The poster remains available on the NLRB agency website.
As an important reminder: these 2 decisions did not affect Executive Order 13496, which requires Federal contractors and subcontractors to post notices informing employees of their rights under Federal labor laws. Please call us if we can assist.
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