The National Labor Relations Board (NLRB) rule requiring virtually all employers to post a notice advising employees of their rights under the National Labor Relations Act (Poster Rule) is dead.
In August 2011, the Board originally issued the Poster Rule which immediately provoked controversy among employers because many viewed the Rule as unfairly balanced in favor of unions. This led to various lawsuits challenging the rule, culminating in Court of Appeal decisions in the Fourth and D.C. circuits that the NLRB lacked statutory authority to issue the Rule. NLRB petitions for rehearing in these cases were denied in August and September 2013.
On January 2, 2014, the Board’s opportunity to file an appeal to the United States Supreme Court expired. This was followed by a public release from the Board on January 6, 2014, confirming the Board’s decision to not seek Supreme Court review of the two Court of Appeal cases.
Unlike the Board’s expedited election rule, the Poster Rule cannot be revived by the new Board as the Courts’ rationale is that the Board, however constituted, does not have statutory authority to require employers to post a general notice to employees regarding their rights under the Act.
In contrast, the basis for lower court decisions involving the expedited election rule is that the Board was unlawfully constituted because President Obama’s attempt to make recess appointments to the Board was in itself unlawful. Thus, the new Board could reissue the expedited election rule but not the Poster Rule.