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.
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