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The National Labor Relations Board (NLRB) January 6 formally abandoned its controversial “Employee Rights” notice poster rule after deciding not to file a petition for the U.S. Supreme Court to review two U.S. Court of Appeals decisions invalidating the notice posting rule. The rule would have required employers to display a poster in their workplace that contained a biased and incomplete list of employee rights under the National Labor Relations Act (NLRA). 

The notice posting rule has been under an injunction since April 2012 in response to a request by the ABC-led Coalition for a Democratic Workplace, National Association of Manufacturers (NAM), and the National Right to Work Legal Defense and Education Fund. The notice posting rule was invalidated by the U.S. Court of Appeals for the D.C. Circuit primarily on the grounds that it violated free speech rights afforded to employers under the NLRA. The Fourth Circuit court also ruled June 14 the NLRB exceeded its authority when it adopted the rule but said it did not need to address the free speech issue because the NLRB should not have promulgated the rule in the first place.

ABC General Counsel Maurice Baskin, a shareholder with Littler, argued the case before the D.C. Circuit in September 2012, stating it would force some 6 million employers around the country to communicate a pro-union message to their employees. Mr. Baskin also pointed out that the board could not show that Congress expressly or implicitly delegated authority to issue the rule and that it violates the plain language of numerous provisions of the NLRA, including Section 8(c), which states “expressing of any views shall not constitute or be evidence of an unfair labor practice.”

After the NLRB’s request for a rehearing was denied twice, an appeal to the U.S. Supreme Court was the last chance to overturn the ruling. However, the board allowed the Jan. 2 filing deadline to pass.  
COMPLIANCE NOTE: This ruling does not change the compliance requirements for federal contractors under Executive Order 13496 (or its subsequent 2010 implementing regulations) to post a similar notice from the DOL, but this rule is now facing its own legal challenge.