JANUARY 10, 2014
Employers who reluctantly posted the National Labor Relations Board’s “Notification of Employee Rights under the National Labor Relations Act,” two years ago can remove the posters from their employee break rooms. After two federal appeals courts struck down the NLRB poster rule, the NLRB announced this week that the agency would not appeal the adverse rulings to the U.S. Supreme Court.
The story began in 2011 when the NLRB adopted a rule that required most employers to post the 11” by 17” notice in their work places by January 31, 2012 – later extended to April 30, 2012 before being postponed indefinitely — to inform employees of their rights under the National Labor Relations Act to join a union and engage in other protected activities. The bullet point list of rights concludes with an employee’s right to “choose not to do any of these activities, including joining or remaining a member of a union.”
But something happened on the way to the break room wall. Business interests filed suit against the NLRB, alleging that the posting requirement was unlawful. Ultimately, one appellate court struck down the notice requirement by holding that the requirement violated employers’ free speech rights. Another appellate court ruled that the notice requirement exceeded the NLRB’s rulemaking authority.
Rather than appeal to the U.S. Supreme Court, the NLRB says that it will find new ways to educate workers about the NLRA and the NLRB. In addition to traditional outreach methods, the NLRB is encouraging employers to voluntarily post the notice, which is available on the agency’s website, and has established a free NLRB mobile app for smart phone users.
Although the posting requirement may be dead, employers should remain aware of the NLRA’s provisions as the NLRB continues its quest to elevate its profile and educate workers about their individual rights, even in non-union workplaces.