NLRB Won't Pursue Notice-Posting Requirement for Most Private Sector Employers

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By Lawrence E. Dubé  

Jan. 6 --The National Labor Relations Board Jan. 2 allowed U.S. Supreme Court deadlines to pass without filing petitions to review two appellate court decisions that invalidated NLRB's 2011 adoption of a rule requiring most private sector employers to post notices advising employees of their rights under the National Labor Relations Act.

In May 2013, the U.S. Court of Appeals for the District of Columbia Circuit held in National Ass'n of Manufacturers v. NLRB, 717 F.3d 947, 195 LRRM 2717 (D.C. Cir. 2013) (31 HRR 483, 5/13/13) that requiring employers to post the statement of NLRA rights would be inconsistent with Section 8(c) of the act, which precludes finding noncoercive employer speech to be an unfair labor practice or evidence of an unfair labor practice. Two judges on the D.C. Circuit panel also wrote that NLRB lacked authority to promulgate the regulation.

A month later, the Fourth Circuit ruled against the NLRB and sustained a second challenge to the regulation in Chamber of Commerce v. NLRB, 721 F.3d 152, 196 LRRM 2001 (D.C. Cir. 2013) (31 HRR 653, 6/24/13). Both appellate courts denied rehearing of their rulings, and NLRB allowed a Jan. 2 deadline set by the Supreme Court to expire without asking the justices to take up either case.

Rule Cited 'Knowledge Gap' About Employee Rights

Acting on a 1993 petition for rulemaking, a divided NLRB proposed the regulation in December 2010 (28 HRR 1382, 12/27/10) and published a final rule in August 2011 (76 Fed. Reg. 54,006; 29 HRR 932, 9/5/11).

Citing Section 6 of the NLRA, 29 U.S.C. § 156, which gives the agency authority to adopt “such rules and regulations as may be necessary to carry out the provisions of this Act,” a three-member board majority consisting of Chairman Wilma B. Liebman (D) and Members Craig Becker (D) and Mark Gaston Pearce (D) adopted the rule as a measure to address a “knowledge gap” that they said left most American workers unaware of their NLRA rights.

Member Brian E. Hayes (R) dissented from the board's proposal of the rule as well as its final adoption, finding that the act did not authorize the board's action.

NLRB Keeps Notice Online for Voluntary Use

On Jan. 6, the NLRB issued a statement on its action.

“The NLRB remains committed to ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the [NLRA],” the agency said, adding that “the NLRB will continue its national outreach program to educate the American public about the statute.”

The D.C. Circuit said in the NAM ruling that nothing prohibits the NLRB from posting on its own website the statement of employee rights that it included in the notice-posting regulation.

The NLRB said it will continue to maintain a copy of the same workplace poster on the NLRB website. “It may be viewed, displayed and disseminated voluntarily,” the agency said.

Challenge to DOL Posting Rule Under Way

The NLRB's action does not affect a Labor Department rule requiring federal contractors to post workplace notices informing workers of their rights under the NLRA.

NAM Dec. 18 filed a lawsuit in the U.S. District Court for the District of Columbia challenging the DOL rule on First Amendment and other grounds (National Association of Manufacturers v. Perez, D.D.C., No. 13-cv-1998, complaint filed 12/18/13; 31 HRR 1350, 12/23/13).

The government has not yet filed an answer or response to the NAM complaint.

 

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com


Text of the NLRB statement on the notice-posting rule is available at http://www.nlrb.gov/news-outreach/news-story/nlrbs-notice-posting-rule.