United States: NLRB's Notice Posting Rule Effectively Void, But Employers Should Anticipate Renewed Rulemaking Efforts

The National Labor Relations Board's legal attempt to revive its notice posting rule issued in August 2011 has run its course.  The rule – Notification of Employee Rights under the National Labor Relations Act – would have required employers to conspicuously display a notice informing employees of their rights under the NLRA.  In May 2013, in National Association of Manufacturers, et al. v. NLRB,¹ the U.S Court of Appeals for the D.C. Circuit invalidated the rule, finding that the enforcement mechanisms imposed by the rule were unlawful. Four months later, the court dismissed the Board's petition to review. 

Similarly, in June 2013 the Fourth Circuit struck down the rule in Chamber of Commerce et al. v. NLRB on the grounds that the rule exceeded the Board's rulemaking authority as delegated by Congress.  The appellate court denied the Board's petition for a rehearing later that summer. 

The Board's final recourse was Supreme Court review.  For this to occur, the Board would have had to file its request for review of the aforementioned cases by January 2, 2014.  Because the Board failed to act by this deadline, the matter can be legally put to rest – for now. 

Although this is a victory for employers, the Board is likely picking its regulatory battles.  As we previously reported, last month the Board voluntarily dismissed its appeal of a district court case that invalidated the contentious expedited representation election rule issued in December 2011. That move opens the door for a reconstituted and fully functioning Board to re-issue an even more comprehensive rule that will dramatically alter representation election procedures.  In other words, it is expected that the Board is marshaling its resources into revising and reissuing the so-called "ambush" election rule. 

The bottom line is that with respect to the onerous notice posting requirement, employers can now rest easy.  A bigger rule-making battle, however, is likely around the corner. 

Footnote

1 Littler Shareholder Maury Baskin represented the Coalition for a Democratic Workplace, one of the plaintiffs in this case.

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