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NLRB abandons controversial notice posting rule

January 9th, 2014  |  David Stephanides

The NLRB announced on January 6 that it will not seek Supreme Court review of two Circuit Court of Appeals decisions invalidating the agency’s Notice Posting Rule (29 CFR Part 104, previously effective April 30, 2012), which would have required most private sector employers to post a notice of employee rights under the NLRA.

On May 7, the D.C. Circuit vacated the controversial rule, upholding a challenge brought by several employer groups. Instead of hanging its decision on the NLRB’s authority under NLRA Sec. 6 to promulgate the posting rule, as argued by the parties, the circuit court concluded that the rule violated employers’ free speech rights as protected by Sec. 8(c) of the Act. The agency’s bids for panel and en banc rehearing were rejected.

In a June 14 ruling, the Fourth Circuit took up the agency authority issue and determined that the rulemaking function provided for in the NLRA only empowers the NLRB to carry out its statutorily defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon request. Thus, the Fourth Circuit held that the Board exceeded its authority in promulgating the challenged rule. The Fourth Circuit similarly rejected the NLRB’s request for rehearing and rehearing en banc.

While it has tossed in the towel as far as judicial review goes, the NLRB said that it nonetheless “remains committed to ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act.” To that end, the agency will continue is its national outreach program to educate the American public about NLRA. The disputed poster also remains available on the agency website. The NLRB noted that it may be viewed, displayed and disseminated voluntarily. In addition the Board pointed to its free NLRB mobile app for iPhone and Android users, which provides the public with information about the NLRA.

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