NLRB Concedes Defeat on Notice Posting Rule, but Maintains Interest in Non-Unionized Workplaces and Union Organizing

What you need to know:

The National Labor Relations Board recently announced it would not pursue Supreme Court review of two US Court of Appeals decisions striking down its proposed Notice Posting Rule.  This rule would have required most private sector employers to post a conspicuous notice advising employees of their workplace rights under the National Labor Relations Act.

What you need to do:

Though employers are not required to display the pro-union notice, they must still observe other notice posting requirements, including those required by the Department of Labor.  Additionally, given an anticipated increase in the NLRB’s efforts, employers should review workplace policies and practices, especially in the areas of social media and confidentiality, to avoid potential claims of unfair labor practices.

The Rule

Originally proposed in August 2011, the National Labor Relations Board’s Notice Posting Rule would have required most private sector employers to conspicuously post an eleven by seventeen-inch notice informing employees of their rights in the workplace, including their right to unionize and engage in collective bargaining.

As we reported in a prior Alert, considerable criticism and legal challenges brought by several trade organizations delayed the Notice Posting Rule from taking effect for over a year.  Finally, in May 2013, both the Fourth Circuit and the DC Circuit Court of Appeals independently struck down the proposed rule.

The Board’s last resort was to appeal these decisions to the Supreme Court, an option they chose not to pursue.  The Board still encourages employers to voluntarily post the notice, however, and recently created a free NLRB mobile app for iPhone and Android users to better educate employees about their workplace rights.

What the NLRB’s Decision Means for Employers

Although the Board abandoned its attempt to revive the Notice Posting Rule, many expect the Board to regroup after this decision and focus its efforts on issuing rules that will affect employers in other ways and increase its influence in non-unionized workplaces.  The Board just announced, for example, that it will re-introduce a controversial rule for streamlining union elections that will almost certainly make it easier for unions to organize employees if it becomes law. 

The Board also remains active in its adjudicatory capacity, continuing  to issue decisions with expansive interpretations of Section 7 of the National Labor Relations Act, many of which have significant implications for non-unionized workplaces.