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NLRB Gives Up On Posting . . . For Now

Peter J. Richter

January 15, 2014

Back in early 2011, the National Labor Relations Board (NLRB) proposed a new rule that would require employers to notify employees of their right to organize under the National Labor Relations Act (NLRA). Under Section 7 of the NLRA, “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities[.]” While employers had long been prohibited from infringing on those Section 7 rights, there was no affirmative obligation on the part of the employer to notify employees of their rights.

However, on August 30, 2011, the NLRB’s Final Rule regarding the new posting requirements for employers was published in the Federal Register. The new rule was initially slated to take effect on November 14, 2011, and would have required all private-sector employers that are subject to the NLRA, including labor unions, to post a notice in a “conspicuous place” that advised employees of their rights under NLRA. However, the NLRB subsequently announced that it was delaying the implementation date until January 31, 2012. Lawsuits were soon filed in the U.S. District Court, and the NLRB agreed to postpone the rule until the District Court had a chance to rule on the merits of the rule. While the District Court did ultimately lessen the power of the NLRB to punish employers who failed to post, the Court upheld the posting requirement itself, and April 30, 2012, was set as the final deadline for covered employers to comply. At least that was the deadline until the Court of Appeals got involved.

The Court of Appeals for the District of Columbia Circuit first issued an emergency injunction blocking the posting rule from taking effect. Then, in May 2013, the Court issued a decision invalidating the posting rule. Not long after, the Court of Appeals for the 4th Circuit also issued a ruling striking down the posting requirement, albeit for different reasons. As a result of the ruling by the Court of Appeals, the NLRB had until January 2, 2014, to ask the U.S. Supreme Court to review the issue and (potentially) save the posting rule. The NLRB let the deadline pass and therefore the posting requirement is effectively dead. However, it is certainly not inconceivable to think that the NLRB will attempt to issue some modified form of the posting rule in the not too distant future.

If you have any questions about how the information in this article may affect you or your business, please contact Peter Richter at prichter@stroudlaw.com or (608) 257‑2281 or your Stroud attorney. 


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