NLRB Throws in the Towel on Poster Rule… For Now

January 7, 2014

In a victory for private employers, the National Labor Relations Board (NLRB) has elected not to petition the United States Supreme Court to review challenges to its controversial “Poster Rule.” Originally proposed by the NLRB in 2011 under its rule-making authority, the Poster Rule required most private sector employers to conspicuously post an 11×17 inch poster, entitled “Notification of Employee Rights Under the National Labor Relations Act.” Among other things, the poster explained the rights of workers to a join a union and bargain collectively regarding wages and working conditions. This proposed rule created significant unease among the business community and others who considered the Poster Rule and the verbiage in the posting as improperly biased in favor of unionization.

The Poster Rule was originally scheduled to take effect in 2011 but was delayed to April 30, 2012. It was then later postponed pending the resolution of legal challenges in federal courts. Last year, those legal challenges resulted in both the D.C. Circuit and the Fourth Circuit Court of Appeals striking down the Poster Rule on different grounds, with the D.C. Circuit holding that the Poster Rule violated an employer’s right to free speech and the Fourth Circuit holding that that the NLRB exceeded its authority in enacting the posting requirement.

Following these rulings, the NLRB’s only recourse was to petition the United States Supreme Court for review of the Circuit Courts’ decisions on or before January 2, 2014. The NLRB let the deadline pass without taking any action. Consequently, the Poster Rule will not go into effect, and private sector employers will not be required to comply with the Poster Rule.

Despite not seeking further review of the Poster Rule decisions, the NLRB stated on January 6, 2014 that it would continue its “national outreach program to educate the American public.” It has not provided specifics on what that outreach program would entail. The notice posting proposed as part of the Poster Rule remains available on the NLRB website, and employers can choose to post the notice on a voluntary basis.

If you have questions about this recent development or other matters related to the National Labor Relations Act or NLRB, please reach out to your McGuireWoods contact or a member of the firm’s traditional labor group.