March 7, 2012

Federal Court Upholds New NLRB Posting Requirement

Last week, a federal court upheld a new National Labor Relations Board (“Board”) rule that employers subject to the National Labor Relations Act (“NLRA”) must post notices of employee rights under federal labor law, including employees’ right to join or not join a union. National Association of Manufacturers v. National Labor Relations Board, U.S.D.C. 1:11-cv-01629. The posting requirement currently goes into effect on April 30, 2012.

The National Association of Manufacturers, the National Right to Work Legal Defense and Education Fund Inc., the Coalition for a Democratic Workplace, the National Federation of Independent Business and several other small businesses challenged this rule promulgated by the Board. The plaintiffs argued that this rule exceeded the Board’s rule-making authority granted by Congress under the NLRA.

A federal judge in the District of Columbia disagreed, finding that the posting rule was within the Board’s authority under Section 156 of the NLRA, which grants the Board the authority to make rules and regulations as may be necessary to carry out the provisions of the NLRA. After finding that the Board had statutory authority to promulgate such a rule, the court accepted the Board’s explanation that this rule is necessary to carry out the provisions of the NLRA; namely, that in order for employees to fully exercise their NLRA rights, they must know that those rights exist.

The court further found that this rule was not unconstitutional compelled speech under the First Amendment. Instead, the court considered the poster to be “government speech,” as evidenced by the Board’s logo prominently displayed on the poster.

In the same decision, the court overturned the Board’s provision that failure to post constitutes an automatic unfair labor practice. The court also rejected a portion of the rule providing that the same failure automatically tolls the six-month statute of limitations requiring unfair labor practices charges to be filed within six-months of the alleged unlawful conduct. However, the court left open the notion that such a notice failure may be a factor for charging parties to argue equitable tolling of the statute of limitations. Employers should be careful in ensuring the required postings are in place by April 30, 2012 to avoid any such argument.

The required posting is an 11x17-inch poster and can be downloaded at the Board’s website here. Hard-copies are also available at any of the Board’s regional, sub-regional or resident offices. Translated versions are available and must be posted if 20% or more of the employer’s workforce is not proficient in English and speaks a language other than English. The notice should be placed in a conspicuous place, where other personnel policies and workplace notices are posted. Employers who customarily communicate personnel rules or policies through an intranet or internet site are also required to post the notice prominently on the site.

On Monday, March 5, 2012, the plaintiffs filed a notice of appeal of this decision.