Government Contracts Monitor

NLRB Posting Rule Is Dead, But Federal Contractors Still Have A FAR Obligation To Post

January 17, 2014

On January 6, 2014, the National Labor Relations Board (“NLRB”) announced that it “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’s decision leaves intact the appellate rulings in Nat’l Assoc. of Mfrs. v. NLRB, No. 12-5068 (D.C. Cir. May 7, 2013) and Chamber of Commerce of the United States v. NLRB, No. 12-1757 (4th Cir. June 14, 2014) which struck down the NLRB’s rule requiring posters advising employees of their rights under the National Labor Relations Act and various mechanisms the NLRB created to enforce the posting requirement. The appellate opinions also rendered the NLRB’s regulations – found at 29 C.F.R. Part 104 – unenforceable. Simply stated, the appellate courts found that the NLRB lacked the authority to promulgate or enforce its posting regulations. As a result of the NLRB’s decision not to appeal, the regulations are effectively “dead” and most employers are no longer obligated to make any postings about National Labor Relations Act rights.

Not all employers are in the clear, however. Employers performing work in the United States and with federal contracts valued in excess of the simplified acquisition threshold (currently $150,000) are still required to comply with the 48 C.F.R. 52.222-40 contract clause and post a specific workplace poster advising employees of their rights under the National Labor Relations Act. The required poster can be found here. The D.C. Circuit and Fourth Circuit decisions which the NLRB chose not to appeal appear to have no impact on the Federal Acquisition Regulation (“FAR”) requirements for a posting. In those cases, the NLRB lacked statutory authority to promulgate or enforce posting regulations. The FAR clause, however, is enforceable and still valid because it was created under the Federal Property and Administrative Services Act of 1949 and prior posting requirements involving employee rights under the National Labor Relations Act were deemed valid under that law. See UAW-Labor Employment and Training Corp. v. Chao, 325 F.3d 360 (D.C. Cir. 2003).

Michael J. Schrier is the attorney responsible for the content of this article.