The NLRB’s decision not to pursue Supreme Court review in the NLRA rights poster cases (which, depending on what happened behind the scenes, may have in reality been a decision by the Solicitor General of the United States) should not have come as a complete surprise. The likelihood of review being granted was small, and even if granted would have carried with it the substantial risk of a decision at the Supreme Court containing language even further restricting the NLRB’s rule making authority.
Instead, according to a statement issued by the NLRB, the agency will continue to pursue a number of policies which it hopes will raise its profile among workers and workers-to-be. These include making the poster voluntarily available on its web site; providing NLRB apps for smart phone users; devoting a special section of its web site to the rights of unorganized workers; and other similar measures and pages on its web site.
The NLRB also continues to engage in traditional outreach activities, a program I encouraged when I was General Counsel. This type of outreach consists principally of presentations to interested groups, be they affiliated with employers or unions, as well as other civic groups and educational institutions. This traditional engagement with the public is well received in most quarters and does not carry with it any legal obligations or threat of sanctions. Rather, it is completely voluntary on the part of any group wishing to host an NLRB speaker. During most of my term we averaged well over 500 such outreach activities each year emanating from the NLRB Regional Offices, not Washington, DC.
So, while the NLRB poster may be dead, the Board’s outreach efforts continue, both high-tech and low-tech. Further, the U.S. Department of Labor’s similar NLRA rights poster for government contractors remains in force, and government contractors must continue to display that poster.