NLRB SURRENDERS IN WORKPLACE POSTING BATTLE

In 2011 the National Labor Relations Board ordered private sector employers nationwide to post a Notice of Rights. While no such posting is required by the law itself, the NLRB justified the posting requirement on the basis of regulations and a need for public awareness of workplace rights. That said, the list of rights was not comprehensive, and selectively included the right of employees to form and organize a union as well as to strike and to take legal action against employers. Employees rights to decertify an incumbent union, to object to union dues, and to take legal action against a union were essentially ignored.

NLRB regulations which attempted to impose the posting requirement provided penalties for employers who did not comply. Those penalties included unfair labor practice liability as well as a waiver of the statutory six month limitation period which governs the timeliness of unfair labor practice charges.

Employer groups sued NLRB to challenge the posting requirement and its penalties on a variety of legal grounds. Courts ruled that the NLRB overreached with its posting requirement, noting that the posting was a free speech infringement by compelling speech on labor issues, that the statement of rights was selective, and that nothing in the National Labor Relations Act itself mandated a posting or repercussions for failing to post a notice of rights.

The NLRB faced a deadline to challenge court rulings on the posting requirement at the United States Supreme Court. On January 6, 2014, the NLRB announced that it would not take action to appeal the earlier court rulings on the Notice of Rights. In a public statement, the NLRB stood by its efforts to require the Notice posting and extolled the value of outreach to promote public awareness of rights under the labor laws. The NLRB announced that the Notice of Rights will remain available at http://www.nlrb.gov/ as a resource which employers and others are free to post and distribute.

The NLRB posting regulation came at a time where NLRB’s legal authority to act on case rulings and regulations is in question. The United States Supreme Court will soon rule in the Noel Canning case on whether recess appointments to fill seats on the NLRB panel were made within the President’s Constitutional authority. It is expected that NLRB will currently focus on litigating the Noel Canning case. Then, in the wake of a Supreme Court ruling, we can expect NLRB to revisit its approach to outreach and posting requirements with a full complement of Senate-confirmed Board Members.

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