NLRB Notice Posting Regulation is Dead

By Edwin S. Hopson

Previously, the U.S. Court of Appeals for the D.C. Circuit in National Association of Manufacturers et al. v. National Labor Relations Board, et al., __ F.3d __, Civil Nos. 12-5068, 12-5138 (D.C. Cir. 2013), had invalidated the NLRB’s regulation issued in 2011 requiring all employers (whether they had a union or not) subject to the National Labor Relations Act (NLRA), estimated at some 6 million businesses, to post an NLRB notice to employees regarding employee rights under the NLRA.  On September 4, 2013, that court denied a petition by the NLRB for rehearing in the case. The time for seeking U.S. Supreme Court review has now passed with no appeal by the NLRB.

According to a recent Huffington Post news report, the NLRB has decided not to fight this battle any further.  Also quoted in the Huffington Post report was the President of the National Association of Manufacturers, who stated:

“Manufacturers start off the new year with great news in our fight against an overreaching NLRB. This is the culmination of the NAM’s aggressive legal pursuit against a government-imposed regulation that would create a hostile work environment while injecting politics into manufacturers’ day-to-day business operations.”

NLRB’s Notice-Posting Rule Finally Rejected By Two Courts of Appeals

By Edwin S. Hopson

Previously, the U.S. Court of Appeals for the D.C. Circuit in National Association of Manufacturers et al. v. National Labor Relations Board, et al., __ F.3d __, Civil Nos. 12-5068, 12-5138 (D.C. Cir. 2013), had invalidated the NLRB’s regulation issued in 2011 requiring all employers subject to the National Labor Relations Act (NLRA), estimated at some 6 million businesses, to post an NLRB notice to employees regarding employee rights under the NLRA.  On September 4, 2013, that court denied a petition by the NLRB for rehearing in the case.

In addition, the Fourth Circuit Court of Appeals in Chamber of Commerce v. NLRB, __ F.3d __,  Civil No. 12-1757 (4^th Cir. 2013), had ruled against the NLRB on the challenge to its notice-posting rule, and, on August 13, 2013, refused to rehear its decision in that case.

The only option left, should the NLRB wish to revive its notice posting rule, is to appeal these cases to the U.S. Supreme Court.

Trade Group Files Suit Against NLRB to Block Its Notice Posting Rule

By Edwin S. Hopson

On September 8, 2011, the National Association of Manufacturers (NAM) filed suit in the U.S. District Court for the District of Columbia to stop the National Labor Relations Board from implementing its “Posting Requirement” rule.  The NLRB’s rule, which is slated to be effective in mid-November, 2011, would require all private employers who are not government contractors to put up posters informing employees in great detail of their right to organize and obtain union representation.  See Wyatt blog posted December 21, 2010.  The legal action asserts that the NLRB is acting outside its jurisdiction in promulgating the rule and requests that the rule be set aside.

NAM’s press release quoted NAM CEO Jay Timmons as stating:

“This rule is just another example of the Board’s aggressive overreach to insert itself into the day-to-day decisions of businesses – exerting powers it doesn’t have. The growing list of burdensome actions from the NLRB is causing great uncertainty among manufacturers at a time when our economy is struggling to recover. We are committed to fighting this rule in order to rein in the NLRB. We also are encouraging Congress to act soon to stop this rogue agency.”

A copy of the complaint can be found at:  http://www.crowell.com/files/National-Association-of-Manufacturers-v-National-Labor-Relations-Board.pdf