Employment Law Alert

Court Upholds NLRB’s Posting Requirement on NLRA Rights – Posting Deadline Remains April 30, 2012

March 1, 2012

On August 30, 2011, the National Labor Relations Board (NLRB) published a new rule requiring that employers post a notice to employees informing them of their rights under the National Labor Relations Act (NLRA), including rights to act together to improve wages and working conditions, to form and join a union, and to bargain collectively.  The rule initially was to take effect on November 14, 2011.

Morse notified clients of the new rule in early September 2011.  Subsequently, in October 2011, we notified clients that the NLRB was postponing the implementation date for the notice-posting rule by two months (to January 31, 2012) in order, the NLRB stated, “to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.” 

Then, in January 2012, we notified clients that the deadline had been postponed to April 30, 2012.  The NLRB stated that it had “agreed to postpone the effective date of its employee rights-notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule.”  The NLRB said that it “determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule.” The challenges included arguments that the NLRB had no authority under the NLRA to make such a rule and that the rule interfered with employers’ right to refrain from speech, thus violating the First Amendment to the U.S. Constitution. 

On March 2, 2012, the federal court in Washington, DC issued its decision, holding that the NLRB did not exceed its statutory authority by requiring employers to post its “Notification of Employee Rights under The National Labor Relations Act.”  The federal district judge concluded that the NLRB has broad authority to adopt rules it deems necessary to promote the purposes of the NLRA and that the posting requirement was within that authority.  The judge held that the rulemaking was a reasonable and not an arbitrary and capricious interpretation of the NLRA.  In rejecting the First Amendment challenge, the judge concluded that the notice does not compel employers to speak; rather, the notice is government speech and the NLRB can mandate the posting to get out its message.

The court, however, did restrict the NLRB’s authority to penalize employers for failing to post the notice.  The court held that the NLRB “cannot make a blanket advance determination that a failure to post will always constitute an unfair labor practice.”  Nevertheless, although an employer’s failure to post does not automatically constitute a violation of the NLRA, the NLRB can still consider on a case-by-case basis whether a particular failure to post constitutes an unfair labor practice.

The court also struck down the rule’s automatic extension of the statute of limitations for unfair labor practice proceedings arising out of a failure to post, which was to apply to all unfair labor practice actions against employers who failed to post the notice.  The district court judge concluded that the limitations period for filing an unfair labor practice charge under the NLRA (six months) is clear and the Act does not authorize the NLRB to enact a rule that automatically tolls the statute of limitations when an employer fails to post the required notice.  However, the court’s decision does not prevent the NLRB from considering an employer’s failure to post the notice in determining whether the statute of limitations should be tolled in a particular case.

Where do things stand now?

The April 30, 2012 posting deadline remains in effect.  Depending on the circumstances, employers who fail to post the notice may be subject to an unfair labor practice charge and also an extended statute of limitations for the filing of other charges under the NLRA.  Also, if an employer knowingly and willfully fails to post the notice the failure may be considered evidence of unlawful motive in any unfair labor practice case.

Please feel free to contact MBBP’s Employment Law Group with any questions concerning the posting requirement.

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