Federal Court Upholds NLRB Posting Requirement

In January 2011, the National Labor Relations Board (NLRB) promulgated a rule requiring private employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA). The rule required that the notice be posted in a “conspicuous place” and provided for penalties for employers who failed to comply. If the NLRB determined that an employer had failed to comply, it could toll the statute of limitations for an employee who files an unfair labor practice (ULP) charge for any alleged conduct by the employer–not only for conduct relating to the failure to post the notice. A failure to post, alone, also would constitute an ULP.

The rule prompted a small fury among the business community, which challenged the NLRB’s authority to promulgate such a rule. A lawsuit was filed by several organizations, including the National Association of Manufacturers and the National Right to Work Legal Defense and Education Foundation. The suit sought to enjoin the enforcement of the rule, the effective date of which has been delayed several times and currently is set for April 30, 2012.

The U.S. District Court for the District of Columbia issued a ruling in the case on March 2, 2012, striking down part of the notice-posting rule. The court found that the NLRB does have the legal authority to require employers to post a notice–including the notice at issue. The court’s decision was not entirely in favor of the NLRB, however, and it rejected the proposed penalties associated with noncompliance. Specifically, the court held that the NLRB does not have authority to extend the statute of limitations to file an ULP charge or to determine that noncompliance constitutes unlawful interference with employees’ NLRA rights.

Thus, the NLRB will not be able to find that an employer engaged in an ULP merely by failing to post the notice as required by the rule. Without this enforcement mechanism, the impact of the posting requirement is reduced significantly. At the same time, though, failure to post the notice could be evidence in support of another ULP charge.

A separate suit is still pending in a federal court in South Carolina and it is unclear how the outcome of that case will impact the decision from the District of Columbia. At this time, though, it appears that the NLRB posting requirement will take effect on April 30, 2012. At that time, all employers subject to the NLRA will be required to add yet another poster to their current collections–this one relating to the right of employees to unionize. A copy of the NLRB’s suggested posting is available at www.nlrb.gov/poster.

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