NLRB to end challenge to ‘notice posting’ rule

The NLRB’s Notice Posting Rule, which required businesses to post notifications reminding workers’ about their right to unionize, has met its end. The National Labor Relations Board has chosen to end the fight and will not challenge the two Circuit Court decisions invalidating the rule.  It was widely speculated that the Board would seek certiorari to the United States Supreme Court.

What Did the Federal Appeals Courts Say About This Anti-Employer Rule?

The D.C. Circuit Court of Appeals in National Association of Manufacturers v. NLRB, held that the Notice Posting Rule interfered with employers’ free speech rights.  The Court also held that the rule was violative of employer rights under the NLRA Section 8(c) because it treated non-coercive employer speech as an unfair labor practice or evidence of an unfair labor practice.

The opinion further held that the tolling provision violated section 10(b) of the NLRA because the NLRB didn’t sufficiently prove that Congress intended to allow section 10(b) to be modified in the manner of the tolling rule.

Fourth Circuit Case

In Chamber of Commerce v. NLRB, the Fourth Circuit Court of Appeals held the rule invalid because the NLRB didn’t have the authority to impose such a rule on employers in the first place.

Judge Duncan, in the opinion, reasoned that the NLRA limits the NLRB to carrying out its specifically defined roles in handling unfair labor practice charges and conducting representation elections upon request. The court held that enacting notice requirements did not fit within these two defined roles.

What Does This Mean for Employers?

After the release of these Appeals Court decisions, employers had to wait in anticipation of the NLRB’s appeal of the decisions to the Supreme Court. In a decision that surprised most experts, the NLRB recently announced that it will not seek Supreme Court review of the decisions, leaving the decisions of the Appeals Courts intact.

Employees still have a legal right to engage in protected activities and avail themselves of their union rights without interference, restriction, or coercion from their employers. However, in light of the Board’s decision not seek certiorari, employers do not have to hang the NLRB’s Notice of Employee Rights.  Any such posting by the employer is now voluntary.

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