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Two-Year Legal Battle Ends as NLRB Gives Up on Poster Regulation

Posted By Bob Ogle, Tuesday, January 07, 2014
Updated: Tuesday, January 07, 2014

The business community got a belated Christmas present on Monday, Jan. 6 when the National Labor Relations Board (NLRB) said it would abandon a regulation that would have required employers to post a notice in the workplace of employees’ rights to organize under the National Labor Relations Act.

ESA has been working with a number of other pro-business associations against the regulation, which was approved by the NLRB in August 2011 and was originally scheduled to take effect in April 2012.

The proposal had already taken quite a beating in the courts:

  • A three-judge panel for the U.S Court of Appeals for the District of Columbia struck down the rule in its entirety in May 2013, saying that the regulation violated employers’ rights to free speech.

  • A similar panel for the U.S. Court of Appeals for the Fourth Circuit ruled against the NLRB in June 2013, saying that that the agency not only was violating employers’ rights to free speech, but that the agency also lacked statutory authority to enact the regulation.

  • In August 2013, the full Fourth Circuit court denied a petition for a rehearing of its ruling. The D.C. Appellate Court upheld its own decision in September 2013.

The NLRB had until Jan. 2, 2014 to file an appeal with the U.S. Supreme Court, but instead announced earlier this week that it would not press the issue further.

Legal battles still continue over a rule enacted by executive order in January 2009 that required all federal contractors and subcontractors to display the posters. The rule affects about 16 million workers, and has most recently been challenged in the U.S. District Court for D.C.

This doesn’t mean there won’t be more regulations coming from the NLRB, however. Observers have noted that the NLRB has a full five-member board for the first time in years, which is likely to lead to more regulations in the coming months and years.

ESA will continue its pro-business stance against regulations from the NLRB or any other government agency that would cause an undue burden for its member companies.

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