According to a statement issued by the National Labor Relations Board this week, the organization has chosen not to seek Supreme Court review of two U.S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most private sector employers to post notifications in the workplace reminding employees of their right to unionize.
In August 2011, the National Labor Relations Board approved a rule obliging employers to display a poster informing workers of the rights afforded to them by the National Labor Relations Act, including the right of employees to organize and bargain collectively with their employers. A three-judge panel for the U.S. Court of Appeals for the D.C. Circuit struck down the rule in May 2013, with another panel for the Fourth Circuit doing the same the following month. The NLRB had until last week to file an appeal to the U.S. Supreme Court, which the agency ultimately decided against doing.
That decision was “not unexpected,” says Ronald Meisburg, the Washington, D.C.-based co-head of Proskauer’s labor management relations group and former NLRB general counsel.
“The chance of obtaining Supreme Court review—much less reversal—was very small,” says Meisburg, “and carried the risk of a ruling placing even greater restrictions on the NLRB’s rulemaking authority.”
This development figures to go down well with many business groups, some of which had accused the NLRB of overstepping its bounds in its efforts to make posting the notifications mandatory. Associated Builders and Contractors Inc., for example, had previously described the posting rule as “a perfect example of how the pro-union board has abandoned its role as a neutral enforcer and arbiter of labor law.”
The National Association of Manufacturers, meanwhile, quickly issued its own statement on the heels of the NLRB’s announcement that it wouldn’t seek Supreme Court review in the posting requirement rule case. In a press release, the organization states the NLRB “has acknowledged its overreach in the case, permanently validating the NAM’s victory.”
“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,” said Jay Timmons, NAM president and CEO.
Nevertheless, the NLRB appears to remain undaunted in its effort to make employees aware of their right to unionize.
In the aforementioned statement, the agency reiterated its commitment to “ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act. Therefore, the NLRB will continue its national outreach program to educate the American public about the statute.”