By Ronald Meisburg and Michael Lebowich
Since 2011, the National Labor Relations Board has been fighting to require employers to post a notice containing rights protected under the National Labor Relations Act. This effort faced strenuous objection from employers who argued that the poster was one-sided, that the NLRB (unlike some other agencies) did not have authority under the law to issue a regulation requiring employers to post anything, and that the tools fashioned by the NLRB’s regulation to enforce the posting requirement were beyond the NLRB’s authority.
The matter was litigated in two federal courts, and eventually both the D.C Circuit and Fourth Circuit ruled against the board. This week the NLRB finally announced its decision not to seek Supreme Court review.
The NLRB’s decision was not unexpected. The likelihood of review being granted was small, and even if the Supreme Court had granted review, the NLRB would have faced the risk of a losing decision containing language even further restricting the NLRB’s rulemaking authority.
The announcement was important for employers as it ends the NLRB’s efforts and makes it clear that there is no obligation to display the poster, and that anyone that has previously done so can take it down now without concern.
The board, however, is not giving up its efforts on employee outreach. In the press release announcing the decision, the NLRB simultaneously promoted the fact that it would continue to pursue a number of policies to raise its profile among workers, including keeping the poster on its website, making it available to employers who wish to display it voluntarily, releasing its new smart phone app, and continuing a special section of its website devoted to the rights of unorganized workers.
The NLRB also continues to engage in traditional outreach activities, a program that has been followed by several NLRB general counsels. This type of outreach consists mostly of presentations to interested groups, whether they are affiliated with employers or unions, as well as other civic groups and educational institutions.
This traditional outreach has been well-received in most quarters and does not carry with it any legal obligations or threat of sanctions. Rather, it is completely voluntary on the part of any group wishing to host an NLRB speaker. For the past few years the agency averaged over 500 outreach activities each year.
So, while the poster may be dead, the board’s outreach efforts continue, both high-tech and low-tech.
Once last important point: Even though there is no NLRB rights posting requirement, a different poster rule still applies for employers who are government contractors. Several years ago, theDepartment of Labor issued its own rules, stating that employers who are government contractors must display a similar poster containing NLRA rights. This remains the law (at least for the time being), so if you are a government contractor, the Labor Department poster must be displayed in accordance with the DOL's regulations.
Ronald Meisburg is a Washington, D.C.-based lawyer and co-head of management-side law firm Proskauer’s Labor-Management Relations Group. Michael Lebowich is a New York-based partner and co-head of Proskauer’s Labor-Management Relations Group.