Monday, January 6, 2014
Today, the NLRB announced that it will not seek Supreme Court cert. for its notice posting rule. Two circuit courts had struck down the rule, one of which was largely on extremely broad First Amendment grounds, so there was a chance that, even if not a full victory, the NLRB could have narrowed its loss. For whatever reason, the NLRB blinked. From the announcement:
The National Labor Relations Board (NLRB) has decided not to seek Supreme Court review of two U.S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most private sector employers to post a notice of employee rights in the workplace.
The NLRB remains committed to ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act. Therefore, the NLRB will continue its national outreach program to educate the American public about the statute.
The U.S. Court of Appeals for the District of Columbia Circuit stated: “[I]t is also without question that the Board is free to post the same message [that is on the poster at issue] on its website.” The workplace poster remains available on the NLRB website. It may be viewed, displayed and disseminated voluntarily. In addition, the NLRB has established a free NLRB mobile app for iPhone and Android users to provide the public with information about the National Labor Relations Act.
I'm not going to lie: I'm disappointed that the NLRB didn't bring this to the Supreme Court. I understand that they thought their chances of winning is slim. However, I do think there was value in challenging the D.C. Circuit's incredibly broad rule. Of course, that's easy for me to say . . . .