NLRB does not challenge ‘poster rule’ decisions

With the deadline for filing a petition passed, the National Labor Relations Board appears to have backed away from its so-called “poster rule.”

The NLRB did not petition the Supreme Court of the United States by the Jan. 2, 2014, cut-off date to review challenges to the rule that required employers to hang posters explaining workers’ rights. The proposed “Notification of Employee Rights under the National Labor Relations Act” was controversial because the poster that businesses were required to display included language on the right to join a union and collectively bargain.

Both the U.S. Court of Appeals for the District of Columbia Circuit and the 4th Circuit Court of Appeals knocked down the rule in 2013.

In National Association of Manufacturers v. NLRB, 12-5068 (D.C. Cir. May 7, 2013), the court held the rule violated a company’s right to free speech which, the opinion noted, also includes the right not to speak. When the 4th Circuit issued its opinion in June 2013, picking up in Chamber of Commerce of the United States et al. v. National Labor Relations Board, 12-1757, where the D.C. Circuit left off. The court found the NLRB overstepped its authority.

However, as Barnes and Thornburg LLP attorney David Pryzbylski noted in his blog, the rule may not necessarily be dead.

“Accordingly, it appears the Poster Rule is dead – at least for now,” Pryzbylski wrote. “As we’ve noted on the Blog, the NLRB has a full five members for the first time in years, and more rulemaking is expected from the Board in the coming months and years. It is not out of the question that some modified form of the ‘Poster Rule’ could be attempted by the newly constituted NLRB.”