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NLRB Drops its Notice Posting Rule for Now
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This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

By Amy Robinson 
Winter 2013

In 2011, the National Labor Relations Board ("NLRB") enacted a rule that would have required most employers, whether unionized or not, to post a notice in the workplace entitled "Employee Rights Under the National Labor Relations Act" ("posting rule"). In early 2012, employer groups challenged the posting rule in two U.S. District Courts. Both cases were appealed, and both struck down the rule, but for different reasons.

The U.S. Court of Appeals for the D.C. Circuit struck down the rule on the basis that the proposed enforcement methods were invalid. National Association of Manufacturers, et al. v. NLRB. The U.S. Court of Appeals for the Fourth Circuit found the rule to be invalid because the NLRB had "exceeded its authority in promulgating the challenged rule." Chamber of Commerce et al. v. NLRB. In response, the NLRB said it was backing off from the rule, and would not pursue enforcement pending further review by the Supreme Court.

Monday, January 6, 2014, the NLRB finally announced that it will not seek Supreme Court review of the two U.S. Court of Appeals decisions. That means the decisions striking down the rule will stand and the posting rule is effectively defunct. However, the NLRB insisted it will "continue its national outreach program to educate the American public" about the National Labor Relations Act ("NLRA") by making the poster available on its website and by creating a free mobile app for iPhone and Android devices.

Be aware that just because the posting requirement is not in effect, employees still have the same rights under the NLRA and those rights must not be impeded. Despite a common misperception about this law, it is not limited to only union workplaces and/or employees. In fact, as clearly stated on the NLRB's poster, the NLRA confers rights upon most employees to:

"Organize a union to negotiate with employers concerning wages, hours, and other terms and conditions of employment. Form, join or assist a union. Bargain collectively through representatives of employees' own choosing for a contract setting wages, benefits, hours, and other working conditions. Discuss terms and conditions of employment or union organizing with co-workers or a union." Engage in "protected concerted activities" with one or more co-workers to improve wages, benefits and other working conditions. For a definition of "protected concerted activities" and examples of what the NLRB considers such, go to: http://www.nlrb.gov/rights-we-protect/protected-concerted-activity. "Choose not to do any of these activities, including joining or remaining a member of a union."

For more information about the posting rule and the history of the cases discussed above, please see our prior Business Alert, Federal Appeals Court Suspends NLRB Posting Rule.