NLRB Posting Postponed: U.S. District Courts Hold Contradictory Views On Whether The NRLB May Require Posting of Employee Rights

The Courts’ Decision

The United States Court of Appeals for the District of Columbia has granted an emergency motion for injunction blocking the National Labor Relations Board (“NLRB” or the “Board”) from forcing millions of U.S. employers to post notice of employee rights under the National Labor Relations Act (“NLRA”) by April 30, 2012.  The Court of Appeals’ injunction is in response to two contradictory decisions at the U.S.  District Court level on whether the NLRB has authority to require such a posting under the NLRA.  The NLRB Chairman, Mark Pearce, said the Board will instruct its regional offices not to enforce the posting requirement pending appeal. 

On March 2, 2012, the U.S. District Court for the District of Columbia upheld the Board’s right to enact regulations requiring covered employers to post notice of employee rights under the NLRA.  The court stated that Congress’ intentions do not preclude the NLRB from promulgating such a rule and that it does not violate the employer’s free speech rights.  The Court struck down two major provisions of the NLRB’s proposed rule.  The Court first rejected the provision that provided for an automatic finding of an unfair labor practice for failure to post the notice.  Second, the Court rejected the provision that tolled the applicable six month statute of limitations period for filing a charge against an employer where the Board deemed it appropriate.  Remedies will still be available to the NLRB under the Court’s ruling; however, infractions will be investigated on a case-by-case basis for interference, restraint, or coercion of employees’ rights.  This decision is currently on appeal with oral argument set for September 2012.

One month after the D.C. District Court’s decision, the U.S. District Court for the District of South Carolina issued a decision that completely contradicts the D.C. Court.  The South Carolina District Court ruled that the Board simply does not have the statutory authority to require employers to post the notice.  The Court reasoned that the Board had “confuse[d] a ‘necessary rule with one that is simply useful” in carrying out the provisions of the NLRA.  The Court further found that “by promulgating a rule that proactively imposes an obligation on employers prior to the filing of a [unfair labour practice] charge or representation petition, in the absence of express statutory authority,” the Board had “contravened the statutory scheme established by Congress.”  The Board has stated it will appeal the decision.

The Notice Posting

The notice poster includes a brief description of employees’ rights under the NLRA including their right to organise with other employees and bargain collectively with their employer.  It includes a brief description of the employer’s obligations under the NLRA including the employer’s inability to prohibit union talk or solicitation during non-work time, to take adverse employment actions based on an employee’s membership or support of a union, to threaten workplace closures in response to union activity, and to generally discourage activities protected under the NLRA.  The notice poster also lays out a few ground rules for unions’ solicitation of employees.  Finally, the poster explains how to file a charge based on any alleged violation of the NLRA.  Under the rule, employers are required to obtain an exact copy of the notice poster (with size requirements) and stick it to the bulletin board where other workplace rights are posted, which may also include internet and intranet sites.   

The Board

The Board’s jurisdiction is very broad and covers the majority of non-government employers with a workplace in the U.S., including non-profits, employee-owned businesses, non-union businesses, and even businesses in “right to work” states.  Those employers specifically excluded by statute or regulation include federal, state, and local governments; those who only employ agricultural labourers; and those subject to the Railway Labor Act (railroads and airlines).  An employer’s workforce does not need to be organised under the NLRA for the Board to maintain jurisdiction over a particular employer.

The Board does not conduct audits on its own initiative.  An employer’s failure to post would need to be brought to the Board’s attention in the form of an unfair labour practice charge on behalf of an employee, union, or other person.  In most instances, the employer’s failure to post would likely result from the employer’s unawareness of the posting requirement.  A Board agent would likely request the employer to post the notice and no further action would be taken.  On the other hand, the Board may consider an employer’s failure to post as being willful and knowing under the NLRA, which could result in fines, penalties, and injunctive relief.

What Employers Should Do

Employers do not need to comply with the notice posting requirement on April 30, 2012.  If the U.S.  Court of Appeals for D.C. ultimately determines that the NLRB has not exceeded its authority, employers may have to post it at a later date.  If there are still contradictory views at the appellate level, however, the U.S. Supreme Court will likely make the final decision.

If you have any questions or would simply like a copy of the NLRB’s Notice Poster, please contact any member of Waller’s Labor and Employment team at 1-800-487-6380 or visit www.wallerlaw.com.

Brian Clifford is an attorney with Waller Lansden practicing in the area of labour and employment law.  Mr. Clifford represents employers in a wide range of industries against allegations involving harassment, discrimination, retaliation, wage and hour issues, and wrongful discharge.  His experience includes counseling employers and defending lawsuits brought under state and federal law’s including the Fair Labor Standards Act, the Family and Medical Leave Act, Title VII of the Civil Rights Act of 1964, and the Employee Retirement Income Security Act.  He has assisted universities, healthcare providers, packaging and shipping companies, hospitality companies and others regarding their labour and employment matters.