Monday, January 6, 2014

NLRB Drops Notice Posting Appeals

NLRBToday, 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 . . . .

-JH

http://lawprofessors.typepad.com/laborprof_blog/2014/01/nlrb-drops-notice-posting-appeals.html

Labor and Employment News, Labor Law | Permalink

TrackBack URL for this entry:

http://www.typepad.com/services/trackback/6a00d8341bfae553ef019b04585af4970d

Listed below are links to weblogs that reference NLRB Drops Notice Posting Appeals:

Comments

I would not be shocked that the SG feared that SCOTUS would address a much larger issue not presented, and lay the groundwork for getting rid of all types of notices. See Citizen's United where the court went after far greater matters than were brought to the Court.

Additionally, the Court continually shows a dislike for employee rights, or at a minimum, an understanding.

While on my pedestal I'll pose this: would conservatives be in arms if unions and employers came up with agreements that all challenges to the union by individuals must be brought through arbitration, and class actions will not be permitted? DR Horton goes against the NLRA, so why not my idea?

Posted by: Jared Gross (formerly known as Per Son) | Jan 7, 2014 6:29:57 AM

Yes, let me voluntarily go to the website of an agency so weak that it is unwilling to even fully press the case that employers ought to be required to tell employees that they have rights under the law not to be discriminated against, rights the agency purportedly "enforces," because, like, they might really be able to do something for me. Ahhhh . . . No. Serendipitously I had just finished Jeff Faux's "Servant Economy" when I saw this post.

Posted by: Michael Duff | Jan 7, 2014 6:43:36 AM

Michael, my guess is that the SG made the final call.

Posted by: Per Son | Jan 8, 2014 8:19:22 AM

Of course, like the notice posting itself, the press release is singularly disingenuous, and could use the following edits: "which would have required most private sector employers to post a notice of [some] employee rights in the workplace.

The NLRB remains committed to ensuring that workers, businesses and labor organizations are informed of [some of ]their rights and obligations under the National Labor Relations Act."

And to answer your question, Jared --- rejecting your equation of "employee rights" with "union powers," admittedly another discussion --- since when is one party unilaterally allowed to deny an adverse party access to an Article III court? The Federal Arbitration Act does not allow it, and the Court already rejected an effort to do so in ALPA v. Miller, 523 U.S. 866 (1998).

Posted by: James Young | Jan 11, 2014 12:03:54 PM

James--read Italian Colors or Concepcion lately?

Posted by: Jared Gross (formerly known as Per Son) | Jan 12, 2014 8:51:43 PM

Much though unions would love to make it so, Jared, are you seriously suggesting that the Court would validate a union's self-interested waiver of an employee's statutory/constitutional rights, based upon cases where individuals had waived THEIR OWN rights? Aside from comparing apples and oranges, keep dreaming.

Posted by: James Young | Jan 13, 2014 5:01:08 PM

James, James, James. I was being sarcastic in the first place. Reread my post.

Posted by: Jared Gross (formerly known as Per Son) | Jan 13, 2014 7:07:03 PM

Post a comment