In the end, the notice posting rule proposed by the National Labor Relations Board (NLRB) died not with a bang, but with a whimper. The NLRB’s proposed rule was earlier struck down by both the Fourth Circuit Court of Appeals and the D.C. Circuit Court of Appeals. After twice requesting extensions of time within which to file petitions for a writ of certiorari with the Supreme Court of the United States, the Board let the final deadline of January 2, 2014, pass yesterday without filing anything. Lawyers for the NLRB have now confirmed that the Board will not seek further review of the decisions below.
This brings to a final close the Board’s attempt to recast itself and its mission after 65 years of enforcing the National Labor Relations Act. The Fourth Circuit’s decision, in which it found that the Board exceeded its authority in promulgating the notice posting rule, is now binding precedent. Ogletree Deakins was pleased to partner with the Chamber of Commerce of the United States and the South Carolina Chamber of Commerce to achieve this result. While we are hopeful that the Fourth Circuit’s decision will slow down the Board’s more egregious attempts to expand its powers, there is no question that the NLRB, along with the Occupational Safety and Health Administration, the U.S. Department of Labor, and other federal administrative agencies will continue to aggressively press their pro-labor agenda in 2014.