Posted on 01/09/2014 at 10:00 AM by Russell Samson
On Monday, January 6, 2014, the NLRB issued a statement to the effect that it would not be seeking review by the United States Supreme Court of the two U.S. Court of Appeals decisions invalidating its Notice Posting Rule. This apparently brings to an end an attempt on the part of this agency to require employers to post something that Congress had not so required over more than seven decades. On August 30, 2011, the National Labor Relations Board published in the Federal Register a final rule which required employers subject to the agencys jurisdiction to post (physically at their workplaces as well as on the employers web sites) a poster, Notification of Employee Rights under the National Labor Relations Act. A failure of an employer to do so would, under the final rule, be an unfair labor practice, as well as subjecting the employer to other sanctions. The final rule was to be effective November 14, 2011. The NLRB itself pushed the effective date out to January 31, 2012, reportedly due to employer confusion over who was subject to the posting requirement. In December 2012, the NRLB delayed the rule yet again, to April 30, 2012, reportedly at the request of a federal court which was hearing a challenge to the rule. Following that courts decision which questioned the rule and an appeal to the United States District Court of Appeals for the District of Columbia, that court stayed the effectiveness of the rule until it ruled on the appeal. In the meantime, a federal court in South Carolina in a separate case also struck down the rule. The NLRB appealed that decision to the Fourth Circuit. On May 7, 2013, a panel of the U.S. Court of Appeals for the D.C. Circuit struck down the rule, without dissent. While a different panel of that court had earlier determined the (in)validity of certain recess appointments to the NLRB, the May 2013 opinion did not rest upon the status of the individuals who had voted to adopt the rule. Rather it looked at the substance of the rule itself. On June 14, 2013, a three-judge panel of the United States Court of Appeals for the Fourth Circuit unanimously struck down the rule on the merits as well. The Fourth Circuits opinion did not look at the constitutional issues raised by the D.C. Circuits opinion. Rather it focused on the nature of the NLRB itself, calling it a "reactive entity." As is true of virtually all appellate courts in this country, the United States Supreme Court has time limits within which a party seeking to appeal to that Court must act after which no appeal is generally permitted. By my (admittedly fallible) count, the time for the NLRB to appeal the decisions striking down its poster rule ran out on January 2, 2014. So the NLRBs statement of January 6, 2014, to the effect that it would not be seeking Supreme Court review of the two U.S. Court of Appeals decisions invalidating its Notice Posting Rule didnt appear (to me) to be too newsworthy. But it did provide an opportunity for the agency to remind that: The workplace poster remains available on the NLRB website. It may be viewed, displayed and disseminated voluntarily. Or not.
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- Russ Samson
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