NLRB Will Not Petition the Supreme Court to Review Invalidation of its Notice Posting Rule | Practical Law

NLRB Will Not Petition the Supreme Court to Review Invalidation of its Notice Posting Rule | Practical Law

The National Labor Relations Board (NLRB) issued a statement on January 6, 2014 confirming that it did not petition the Supreme Court for certiorari to review two US Court of Appeals decisions invalidating its 2011 Notice Posting Rule. The NLRB vowed to continue outreach programs to inform employers and employees of their rights and obligations under the NLRA, while conceding that it cannot require employers to post its notice of employees' rights under the NLRA in their workplaces.

NLRB Will Not Petition the Supreme Court to Review Invalidation of its Notice Posting Rule

by Practical Law Labor & Employment
Published on 07 Jan 2014 • USA (National/Federal)
The National Labor Relations Board (NLRB) issued a statement on January 6, 2014 confirming that it did not petition the Supreme Court for certiorari to review two US Court of Appeals decisions invalidating its 2011 Notice Posting Rule. The NLRB vowed to continue outreach programs to inform employers and employees of their rights and obligations under the NLRA, while conceding that it cannot require employers to post its notice of employees' rights under the NLRA in their workplaces.
On January 6, 2014, the NLRB issued a statement confirming that it would not petition the Supreme Court for certiorari to review two US Court of Appeals determinations invalidating its 2011 Notice of Employee Rights Posting Rule, which would have required most private sector employers to post a notice in the workplace informing employees of their NLRA rights.
In May 2013, the US Court of Appeals for the District of Columbia Circuit held in National Association of Manufacturers v. NLRB that requiring employers to post employees' rights under the NLRA would be inconsistent with Section 8(c) of the NLRA, which preserves employers' rights to communicate their views on unions and union organizing in non-coercive manners. The court held that the regulation infringed on employers' rights to express their own opinions or to refrain from expressing any opinion (including the NLRB's view), about unions. Two judges on the DC Circuit panel also found that the NLRB lacked authority to promulgate the regulation. (717 F.3d 947 (D.C. Cir. 2013). Also see Article, Post No Bills: Insights from the DC Circuit's Ruling on the NLRB's Notice Posting Rule.)
In June 2013, the US Court of Appeals for the Fourth Circuit sustained a second challenge to the regulation (Chamber of Commerce v. NLRB, 721 F.3d 152 (4th Cir. 2013). Also see Legal Update, NLRB Had No Authority to Issue Notice Posting Rule: Fourth Circuit). After both appellate courts denied rehearings on their rulings, the NLRB declined to petition for certiorari in both cases by the Supreme Court-imposed January 2, 2014 deadline.
The NLRB conceded that it cannot require employers to post the notice in the workplace in light of the unchallenged US Courts of Appeals decisions, but vowed to continue outreach programs to inform employers and employees of their rights and obligations under the NLRA. To those ends, the NLRB will continue to feature copies of its poster in 26 languages and two different sizes on its website, and publish the poster's contents on the NLRB's free mobile app.