The battle over the NLRB's notice posting rule appears to have concluded. Last year, two different federal courts of appeals determined that the NLRB's rule was unlawful. The D.C. Circuit found that the rule violated an employer's freedom of speech, which the NLRA guarantees. The Fourth Circuit found that the NLRB didn't have the statutory authority in the NLRA to issue the rule. After it allowed the deadline for filing a petition for certiorari to the U.S. Supreme Court pass without filing anything, the NLRB announced Monday that it was not going to appeal these decisions.
This development is welcome news for employers. There is no suggestion that the NLRB will attempt another rulemaking effort. Rather, the NLRB suggests that its efforts at notifying employees about their rights under the NLRA will continue through the agency's website and mobile apps. Thus, the conclusion of the notice posting rule is unlike the union election rule, which may yet be the focus of further rulemaking efforts despite the NLRB's decision to abandon its appeal of adverse rulings associated with that rule. The text of the email from the NLRB announcing this development is quoted in full in the extended entry.
The NLRB's Notice Posting Rule
January 6, 2014
The National Labor Relations Board (NLRB) has 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 NLRB remains committed to ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act. Therefore, the NLRB will continue its national outreach program to educate the American public about the statute.
The U.S. Court of Appeals for the District of Columbia Circuit stated: “[I]t is also without question that the Board is free to post the same message [that is on the poster at issue] on its website.” The workplace poster remains available on the NLRB website. It may be viewed, displayed and disseminated voluntarily. In addition, the NLRB has established a free NLRB mobile app for iPhone and Android users to provide the public with information about the National Labor Relations Act.
Under the National Labor Relations Act, most private sector employees have the right to:
- Organize a union to negotiate with employers concerning wages, hours, and other terms and conditions of employment.
- Form, join or assist a union.
- Bargain collectively through representatives of employees’ own choosing for a contract setting wages, benefits, hours, and other working conditions.
- Discuss terms and conditions of employment or union organizing with co-workers or a union.
- Engage in protected concerted activities with one or more co-workers to improve wages, benefits and other working conditions.
- Choose not to do any of these activities, including joining or remaining a member of a union.
Workers who believe their rights have been violated should contact the NLRB promptly, as there is a six-month statute of limitation. Inquiries regarding possible violations can be made without an employer, union or anyone else being informed of the inquiry. Charges may be filed by any person and need not be filed by the employee directly affected by the violation. As examples, the NLRB may order (1) an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits; (2) may order a union to adhere to its duty of fair representation; and (3) may order an employer or union to otherwise cease violating the law. Employees should seek assistance from the nearest regional NLRB office, which can be found on the Agency’s website: www.nlrb.gov.
The NLRB can also be contacted by calling toll-free: 1-866-667-NLRB (6572) or (TTY) 1-866-315-NLRB (6572) for the hearing impaired.