NLRB Abandons Notice-Posting Rule

The battle over the National Labor Relations Board’s notice-posting rule has effectively ended by Board forfeit.  The rule would have required most private-sector employers to post a designated notice informing employees of the right to unionize and of other rights under the National Labor Relations Act (NLRA).  The Board issued the final regulation in August 2011 but put implementation on hold as a result of legal challenges.  In separate cases decided in May and June of 2013, both brought by AGC-supported organizations, the U.S. Courts of Appeals for the DC and the Fourth Circuits struck down the rule on different grounds.  On Jan. 2, 2014, the Board let the deadline for seeking Supreme Court review of those decisions to pass without action. In a statement issued on Jan. 6, 2014, the Board said that it “will continue its national outreach program to educate the American public about the statute.”  The Board has also reminded employers that they may voluntarily post the designated notice, which remains available on the agency’s website. The Board could issue a new notice-posting rule, but this would require restarting the formal rulemaking process from scratch, and, so far, the Board has made no indication that it intends to do so.  This stands in contrast with indications from the Board that it very well might revisit its other embattled rulemaking effort, the so-called “Quickie Election” Rule.  That rule – which would expedite the process in union representation elections to unions’ advantage – has been suspended since a court ruled that the Board issued it without a proper quorum.  The Board has chosen to abandon its appeal of the decision in that case as well, but it continues to keep the initiative on its regulatory agenda. AGC members are reminded that, while the Board’s notice-posting rule is now defunct, many federal contractors must still comply with similar rules issued by the U.S. Department of Labor and the FAR Council. For more information, contact Associate General Counsel Denise Gold at goldd@agc.org or (703) 837-5326.