Dora Vivaz, Senior Attorney, National Legal Research Group
As a number of sources have recently reported, see, e.g., Lawrence E. Dubé, NLRB Won't Pursue Notice-Posting Requirement for Most Private Sector Employees (last visited Jan. 13, 2014); NLRB, Notice Posting Rule, Jan. 6, 2014; Dave Jamieson, Employers Won't Have to Tell Workers Their Labor Rights After All, the National Labor Relations Board ("NLRB") has abandoned any plans it may have had to seek review from the U.S. Supreme Court of two federal circuit court of appeals decisions invalidating the NLRB's proposed rule for posting notices of employee rights in the workplace. The proposed rule would have required most private employers to post a prescribed notice of employee rights under the National Labor Relations Act (the "Act") at the workplace—more specifically, of their rights to act and bargain collectively, to unionize, or to refrain from collective action. Under the proposed rule, failure to comply with the notice requirement would itself have constituted an unfair labor practice.
Not surprisingly, business groups opposed the rule and sought to have it struck down, maintaining that it upset the intended role of the NLRB for dispute resolution, turning it into an advocate for union rights. Two circuit courts did, in fact, invalidate the rule. The District of Columbia Circuit concluded that the rule violated the rights of employers by forcing them to disseminate a message that they did not create, on penalty of being charged with an unfair labor practice that could be used as evidence of anti-union animus. Nat'l Ass'n of Mfrs. v. NLRB, 717 F.3d 947 (D.C. Cir. 2013), reh’g en banc denied (Sept. 4, 2013).
The Fourth Circuit, going even further, found that the rule was beyond the authority granted to the NLRB by Congress, reasoning that specific authority is required under the Act before a rule may be promulgated. U.S. Chamber of Commerce v. NLRB, 721 F.3d 152 (4th Cir. 2013). Agreeing with the Chamber of Commerce, the court explained:
Because the Board is nowhere charged with informing employees of their rights under the NLRA, we find no indication in the plain language of the Act that Congress intended to grant the Board the authority to promulgate such a requirement.
Id. at 160-61. Not only did the court find nothing in the Act to indicate that Congress intended to grant any authority to issue such a proactive posting rule—it concluded that Congress affirmatively intended that the Board act only as a reactive entity, confining its role to conducting representation elections and resolving unfair labor practices charges.
The NLRB has stated that it will continue to work to inform employees of their rights under the federal statute and has noted on its website that employers are still free to voluntarily post the notice.
