NLRB Issues Decision on Notice Posting Rule
In 2013, two U.S. Court of Appeals decisions invalidated the NLRB's Notice Posting Rule, which required that most private employers post a notice of employee rights in the workplace.
The rule, entitled "Notification of Employee Rights under the National Labor Relations Act," applied to any employer that falls under the NLRB's jurisdiction. This covers a broad range of private sector employers whose activity in interstate commerce exceeds a minimal level.
The two Court of Appeals decisions came from the D.C. Court of Appeals and the 4th Circuit Court of Appeals.
National Association of Manufacturers v. National Labor Relations Board, the D.C. Court of Appeals case, held that rule violated section 8(c) of the National Labor Relations Act (NLRA), because it makes non-coercive employer speech to be an unfair labor practice or evidence of an unfair labor practice. The opinion further held that the tolling provision, which would also be used to enforce the rule, violated section 10(b) of the NLRA, and that the NLRB made no showing that the 1947 Congress that enacted it intended to allow section 10(b) to be modified in the manner of the tolling rule.
In Chamber of Commerce v. NLRB, the 4th Circuit Court of Appeals held that the NLRB exceeded its authority when it enacted this rule that would require employers to post an official NLRB notice informing employees of their rights under the Act. Writing for the Court, Judge Duncan reasoned that the NLRB did not have the authority to promulgate notice requirements because the NLRA only empowers the NLRB to carry out its defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon request.
NLRB Declines to Seek Supreme Court Review
On January 6, 2014, the NLRB issued a statement advising that it has decided not to seek Supreme Court review of the two decisions.
Citing the D.C. Court of Appeals decision, the NLRB reiterated that it was free to post the same message (that is on the poster) on its website, the poster remains available on the NLRB website and it may be viewed, displayed, and disseminated voluntarily.
Employers are not required to post the NLRB's Notice of Employee Rights, and will no longer have to wait and see if there will be Supreme Court review of this issue.