Back To The Drawing Board For The Board

On January 6, 2014, the National Labor Relations Board (NLRB) announced that it would not seek Supreme Court review of two federal appeals court decisions striking down the NLRB's rule requiring employers to display "Employee Rights" posters informing workers of their right to unionize. In the first of those two appellate decisions, the D.C. Circuit held that the posting rule ran afoul of Section 8(c) of the National Labor Relations Act (NLRA), which provides that the expression or dissemination of views (including employer silence on such topics) cannot constitute an unfair labor practice as long as the expression (or in this case silence) lacks threats of reprisal or promise of benefit. In the other case, the Fourth Circuit went further, holding that the NLRB simply did not have authority under Section 6 of the NLRA to mandate the poster. By ending its appeal efforts, the Board avoided further negative press, and higher and final authority questioning its position.

The Board's announcement comes just weeks after the National Association of Manufacturers filed a federal lawsuit against sister agency the Department of Labor in the District of Columbia, seeking to invalidate an Office of Labor-Management Standards rule requiring federal contractors to post similar notices of unionization rights. The poster litigation serves as a powerful example how recent enhanced inter-agency coordination on such initiatives may open the door for employers to advance their rights before one agency by referencing arguments used to invalidate analogous overreaching rules or regulation by a different agency.

What may be next for the Board and the union rights poster? The Board continues to look for new ways to raise awareness amongst workers of their rights under the NLRA. For example, look for the NLRB to promote its new "NLRB Guide" app for iPhone and Android mobile devices to provide information regarding the NLRA and employee rights. The Board also continues to promote the Employee Rights poster as a voluntary measure for employers, and employers seeking to settle unfair labor practices cases may see the poster again as a term of settlement with the Board.