Volume 2, Issue 2 - January 31, 2014

The National Labor Relations Board decided not to pursue any further attempts to revive the notice posting rule it initially proposed in 2011.

The rule would have required private sector employers to conspicuously display an 11 by 17-inch poster explaining the rights of workers to unionize and collectively bargain over wages and working conditions.

Although scheduled to take effect in 2011, it was postponed until January 31, 2012 due to significant criticism and legal challenges from national business and industry associations.

It was delayed again after a federal court ordered the NLRB postpone the effective date pending the resolution of any legal challenges.

In 2013, the D.C. Circuit Court invalidated the rule, reasoning that it effectively coerced employers to disseminate information they had a right not to disseminate under the First Amendment.

That same month, the Fourth Circuit Court of Appeals also struck down the posting rule, holding that Congress never intended to grant such rulemaking authority to the NLRB.

The board’s only remaining legal recourse was to petition the Supreme Court for review. Apparently recognizing its limited chance of success, it failed to file its petition by the January 2, 2014 deadline.

“Employers can breathe a sigh of relief knowing that they will not be subjected to the NLRB’s posting requirements in the near future,” said Patricia J. Hill, Jeffrey P. Watson and Matthew W. Clarke of the law firm of Smith Gambrell & Russell.

“However, employers should not let down their guard just yet,” it warned. “Despite the fact that unionized workers comprised just 7.3% of private-sector employees in 2012, the NLRB’s decision not to seek Supreme Court review may be an attempt to focus its efforts in other areas that may significantly impact employers in the future.”

In addition, the board noted that its poster remains available on its website where it can be viewed, displayed and disseminated voluntarily.