NLRB Gives Up Fight Against Notice Posting Rule Cases

By Aditi Mukherji, JD on January 09, 2014 | Last updated on March 21, 2019

The NLRB's Notice Posting Rule, which required businesses to post notifications reminding workers' about their right to unionize, has met its demise in a legal war of attrition. The National Labor Relations Board gave up the fight and will not challenge two federal court decisions that invalidated the Posting Rule.

Here's a breakdown of the employer-friendly cases and what this means for employer obligations:

D.C. Circuit Case

In National Association of Manufacturers v. NLRB, a three-member panel of the D.C. Court of Appeals held that the Notice Posting Rule interfered with employers' free speech rights as well as 29 U.S.C. § 158(c) because it treated non-coercive employer speech as an unfair labor practice or evidence of an unfair labor practice.

The opinion further held that the tolling provision violated section 10(b) of the NLRA because the NLRB didn't sufficiently prove that Congress intended to allow section 10(b) to be modified in the manner of the tolling rule.

Fourth Circuit Case

In Chamber of Commerce v. NLRB, the Fourth Circuit Court of Appeals held that the NLRB didn't have the authority to impose the Notice Posting Rule on employers in the first place.

Writing for the court, Judge Duncan reasoned that the NLRA only empowers the NLRB to carry out its specifically defined roles in addressing unfair labor practice charges and conducting representation elections upon request. The court ruled enacting notice requirements did not fit within these two defined roles.

NLRB Won't Appeal Rulings

Following the decisions, employers had to sit tight in anticipation of the NLRB appealing the decisions. But in a surprising turn of events, the NLRB recently announced that it will not seek Supreme Court review of the decisions, leaving the courts' decisions intact.

Of course, employees still have a legal right to engage in protected activities and avail themselves of their union rights. But this latest development means that employers don't have to hang posters of the NLRB's Notice of Employee Rights over the clock or by the water cooler; it's now voluntary.

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