April 19, 2012
Previously published on April 18, 2012
The NLRB requirement that virtually all private sector employers post an 11 x 17 notice advising their employees of their rights under the National Labor Relations Act, originally proposed in December of 2010 and scheduled to go into effect in November of 2011, then postponed twice, most recently until April 30 of this year, is up in the air again. In March, the federal District Court for the District of Columbia rejected an attempt by the National Association of Manufacturers and other groups to shoot down the requirement entirely, but ruled that two of its elements were beyond the authority of the NLRB. One was the statement that failure to post the notice would constitute an unfair labor practice, and the other was a provision tolling the statute of limitations on any violation of the Act by an employer that had not complied with the posting requirement. Last week a federal District Court in Georgia ruled that the Board's rulemaking exercise was beyond its authority. Without discrediting the NLRB's view that employees need additional information about their rights under the Act, the judge found that the Act does not provide the necessary support for the Board's decision to require a posting in almost every workplace. It seems virtually certain that the NLRB will appeal that ruling to a higher court. Just yesterday, in response to an appeal by the Manufacturer's Association of the lower court ruling in March, the Court of Appeals for the District of Columbia issued an injunction blocking the NLRB's entire rule, not just the elements the lower court found objectionable, pending a full-fledged review with an expedited schedule that should result in a decision sometime this summer. While the NLRB could have taken the position that its rule is still valid everywhere but in the District of Columbia and South Carolina, late yesterday it decided to postpone the effective date yet again pending a definitive judicial resolution. The posting requirement has had a controversial history. It was first adopted when the NLRB was down to only three members instead of its statutory five-member complement. The one Republican appointee was vehemently opposed, and there were even rumors that he might resign in order to leave a two-member Board that would be legally powerless to act. Shortly after it was adopted, the rule was challenged by several groups, including the U.S. Chamber of Commerce, the plaintiff in the South Carolina case. Many see it as an attempt by the NLRB to bolster unionism in the private sector, which is down from a high of 35% of the workforce more than fifty years ago to less than 10% now. This view would be consistent with a recent trend toward pursuing charges against non-union employers whose workers have allegedly engaged in "concerted protected activity," such as sharing work-related gripes with their co-workers on Facebook. If the posting or some version of it is ultimately required, the NLRB has done its best to make compliance easy. The poster itself can be downloaded and printed in several languages at www.nlrb.gov/poster; there's a Q&A list at www.nlrb.gov/faq/poster; and questions can be addressed to poster@nlrb.gov. Any member of our firm's Employer Defense and Labor Relations practice group can also help you, and can offer advice if you are considering posting a statement about your company's position on unionism along with the NLRB document.
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