NLRB Does Not Seek Review of Decisions Invalidating Notice Posting Rule

Tuesday, January 7, 2014

The National Labor Relations Board (NLRB) has decided not to seek Supreme Court review of two U.S. 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.

Earlier this year in National Association of Manufacturers, et al. v. NLRB, the U.S Court of Appeals for the D.C. Circuit invalidated the rule.  The court found that the enforcement mechanisms imposed by the rule were unlawful. 

The Fourth Circuit struck down the notice posting rule in Chamber of Commerce et al. v. NLRB on the grounds that the rule exceeded the Board’s rulemaking authority as delegated by Congress.

The Board’s final recourse was Supreme Court review.  The Board would have had to file its request for review of the  cases by January 2, 2014.  The Board failed to file by this deadline.

The NLRB, however,  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 U.S. Court of Appeals for the District of Columbia Circuit stated:  “[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.” The workplace poster remains available on the NLRB website.  It may be viewed, displayed and disseminated voluntarily.  In addition, the NLRB has established a free NLRB mobile app for iPhone and Android users to provide the public with information about the National Labor Relations Act.

Under the National Labor Relations Act, most private sector employees have the right 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.
  • Choose not to do any of these activities, including joining or remaining a member of a union. 

Workers who believe their rights have been violated should contact the NLRB promptly, as there is a six-month statute of limitation.  Inquiries regarding possible violations can be made without an employer, union or anyone else being informed of the inquiry. Charges may be filed by any person and need not be filed by the employee directly affected by the violation. As examples, the NLRB may order (1) an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits; (2) may order a union to adhere to its duty of fair representation; and (3) may order an employer or union to otherwise cease violating the law.

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