The Notice is Out: NLRB Abandons Controversial Rule

On January 6, the National Labor Relations Board (NLRB or Board) issued a statement indicating that it has decided not to seek US Supreme Court review of two US Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most private sector employers to post a notice of employee rights in the workplace, most notably the right to form and join a union. This is a big victory for employers and industry groups who opposed the controversial measure.
 
The Board made it clear that it would continue its unprecedented outreach efforts, directed primarily at employees. In a statement by the Office of Public Affairs, the NLRB stated that it “remains committed to ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act. Therefore, the NLRB will continue its national outreach program to educate the American public about the statute.”
 
The Board also noted that the US Court of Appeals for the District of Columbia Circuit had stated in one of the poster cases that: “[I]t is also without question that the Board is free to post the same message [that is on the poster at issue] on its website.” Thus, the Board used the opportunity to publicize the poster by providing a link to it on the NLRB website, telling readers it “may be viewed, displayed and disseminated voluntarily,” and encouraging the public to download the NLRB app for iPhone and Android users.
 
While the Notice Posting Rule is effectively dead for now, there remains the possibility that the NLRB may reissue its controversial “ambush election” rule and the Department of Labor will finalize its expansive “persuader” rule in 2014, presenting more challenges for employers. The Arent Fox Labor & Employment practice will continue to monitor developments in this area.
 
The Board’s full statement can be found here.