In 2011, the National Labor Relations Board (the “Board”) published a final rule mandating that all employers subject to the National Labor Relations Act (“NLRA”) post a notice to employees advising them of their rights under the NLRA, including the right to unionize, and listing the Board’s contact information and enforcement procedures. The rule required the Board to find that the failure to post the notice was an unfair labor practice.
In 2013, two U.S. Courts of Appeals (the D.C. Circuit and the Fourth Circuit) invalidated this posting requirement. The Board petitioned both Circuit Courts for en banc hearings. The appeals courts denied these en banc petitions, leaving the Board’s only option to appeal the decisions to the U.S. Supreme Court.
The Board had until January 2, 2014 to petition the U.S. Supreme Court for certiorari to seek review of the decisions. The Board did not file a petition for certiorari. On January 6, 2014, the Board announced that it will not seek U.S. Supreme Court review. The decision to not pursue further is welcome news to employers as it is means the notice posting requirement will not go into effect.
The Board announced that it will continue its outreach efforts, notwithstanding that there is no rule requiring employers to notify employees of their rights under the NLRA