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NLRB Bails on Notice Posting Rule; May Reconsider “Quickie Election” Rule?

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January 8, 2014

By Chris Johlie and Doug Hass

Earlier this week, the National Labor Relations Board issued a statement that it would no longer pursue its appeal of two federal court decisions striking down its “notice posting” rule.

As we have reported, the NLRB’s “notice posting” rule would have required most private sector employers to post a notice of employee rights under the National Labor Relations Act. The rule, announced in August 2011, drew immediate and heavy criticism from employers and employer groups who challenged the rule on a variety of grounds. Two federal courts of appeal—the Fourth Circuit and the D.C. Circuit—rejected the NLRB’s rule.

In its January 6, 2014 statement, the NLRB explained that it would not ask the Supreme Court to review the court of appeal decisions, thus ending the NLRB’s efforts to restore the rule. The NLRB added, however, that it would continue its “its national outreach program to educate the American public about the statute” by way of mobile apps and its website, on which the notice of rights remains available.

As of now, federal contractors and subcontractors remain obligated pursuant to an executive order under the Federal Acquisition Regulations (FAR), 48 C.F.R. 52.222-40, to post a notice very similar to the NLRB’s notice informing their employees of their rights under the National Labor Relations Act. However, just before the holidays last month, the National Association of Manufacturers (NAM) announced that, along with the Virginia Manufacturers Association (VMA), it has filed a lawsuit against the federal Department of Labor, the Office of Federal Contract Compliance Programs (OFCCP), and the Office of Labor-Management Standards (OLMS) with the aim of getting this rule declared invalid as well.

With the NLRB’s notice posting rule in the rear-view mirror, employers should expect the Board will return to consideration of the expedited election rule that we have covered in the past. A federal district court struck down the rule and the NLRB recently dropped its appeal of that case. Now that the NLRB is at full strength with a properly appointed 5-member panel, the time may be right for the NLRB to make another run at the rule, either as published earlier or in a modified form. We will continue to monitor NLRB developments and will provide updates as necessary. 

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