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The NLRB’s “poster” regulation – which would have required employers to post biased notices of employees’ rights to organize under the NLRA – is effectively dead.
In August 2013, in a case brought by the U.S. Chamber, the U.S. Court of Appeals for the Fourth Circuit denied the Board's petition for rehearing of its decision that the NLRB lacked statutory authority to promulgate the regulation.
In September 2013, in a separate challenge to the rule filed by the Coalition for a Democratic Workplace and other groups, the U.S. Court of Appeals for the District of Columbia dismissed the Board’s petition to review its previous decision which held that the regulation violated employers’ free speech rights.
January 2 was the deadline for the Board to file its petition asking the U.S. Supreme Court to review both cases. The Board did not file. This puts an end to both the litigation over the rule and, ultimately, the rule itself.
This is an important victory for the Chamber, the National Chamber Litigation Center, and the employer community in general. Along with the Chamber’s win in its challenge to the Board’s ambush election rule, this represents an effective blow to the Board’s pro-labor agenda.
However, we know that with a fully-confirmed Board, a reissuance of the ambush election rule in 2014 is likely – perhaps with some of the onerous provisions omitted in the first rule.
Moreover, the DOL’s proposed “persuader” regulation is scheduled to be finalized in March. A new ambush election regulation combined with the persuader rule will result in an EFCA-like environment in which employers’ ability to communicate with workers about unionization is severely restricted. This scenario was clearly designed to help bolster big labor’s sagging membership rolls.
2014 has the potential to be a very significant year in the labor relations arena. As always, the Chamber is prepared to be the leading voice for the business community.