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NLRB Drops Controversial Posting Rule

By Robert W. Burns

On August 30, 2011, the National Labor Relations Board (NLRB) published a final rule which was intended to require all employers covered by the National Labor Relations Act (NLRA) to post a new notice advising employees of their right to engage in collective bargaining activity. As the NLRA applies to most private sector employers, not just those with unionized workforces, the requirement (including the consequences for failure to post) would have impacted almost all private sector businesses.

As was anticipated, the posting rule generated considerable opposition from the human resource and business communities. Litigation was commenced by business groups which resulted in several postponements of the posting deadline by the NLRB while the litigation was working its way through the federal courts.

Eventually, two of the federal circuits of the United States Court of Appeals ruled against the NLRB in Chamber of Commerce of the United States, et al. v. NLRB et al,. 721 F.3d 152 (4th Cir. 2013) and National Ass’n of Manufacturers, et al. v. National Labor Relations Board, et al., 717 F.3d 947 (D.C. Cir. 2013). Those courts found that the posting requirement exceeded the NLRB’s authority under the NLRA, thus invalidating the posting rule.

Most recently, on January 6, 2014, the NLRB issued a press release announcing that it had decided not to ask the United States Supreme Court to review the adverse decisions from the Court of Appeals. This effectively ends the prospect of any rule requiring employers to post the NLRB notice.

In its release, the Board emphasized it would continue to seek to educate American workers and the public with regard to their rights under the NLRA, and pointed out that the poster information would be available on the NLRB website as well as mobile apps which will be available from the NLRB to explain rights under that law. However, the Board’s decision to drop the litigation means that its effort to require employers to be the source of such information was not successful.

If you have any questions regarding this article, please contact your Davis & Kuelthau, s.c. attorney or Robert W. Burns at 920.431.2224/