*By Patrick J. Hoban
The Federal District Court for the District of Columbia ruled Friday,
March 2, 2012 that the National Labor Relations Board ("NLRB") can
require private employers to post notices informing employees of their
rights under the National Labor Relations Act ("NLRA") - including the
rights to form a union and file unfair labor practice charges. National Association of Manufacturers v. NLRB, No. 11-1629, (D.D.C. Mar. 2, 2012). Z&R reported on the posting requirements in several prior alerts: Employers Need to See the Writing on the Wall – National Labor Relations Board Publishes Final Rule on Posting Requirements; National Labor Relations Board Employee Rights Notice Posters Now Available; and National Labor Relations Board Delays Implementation of Employee Rights Notice Posters Rule.
The Court issued its decision in an action consolidating
lawsuits filed by the National Association of Manufacturers and the
National Right to Work Legal Defense Fund employer advocacy
organizations. The organizations contended that the NLRB did not have
the statutory authority to implement workplace regulations (such as the
notice posting requirements). Additionally, they argued that the Rule's
enforcement provisions rendering failure to post an unfair labor
practice and extending the six-month period for filing unfair labor
practice charges violated the NLRA. They further contended that the Rule
violated employers' First Amendment rights by compelling employer
speech.
The Court held that the NLRA granted the NLRB "broad" authority
to issue rules enforcing the NLRA' s provisions – including the notice
posting Rule. Specifically, the Court explained that the NLRB' s
conclusion that historically low levels of private sector unionization,
large numbers of immigrants in the national workforce, and high school
graduates' relative ignorance of national labor law rendered the Rule
"reasonably" necessary to "carry out the provisions" of the NLRA. Thus,
the Court found the posting requirement, which informs employees of
their right to organize, provides contact information for the NLRB, and
includes information about how to file unfair labor practice charges,
was within the NLRB' s statutory authority. In short, the Court
validated the NLRB' s motive in issuing the Rule – to increase
unionization in the private sector.
By contrast, the Court found the Rule' s provision that failure
to post was a violation of the NLRA and could extend the unfair labor
practice filing period were in conflict with the express provisions of
the NLRA and struck them down. However, the Court further held that
because the Rule required employers to provide a clear statement of the
law issued by the NLRB, it was not compelling employer speech and did
not violate the First Amendment.
Importantly for employers, the Court made clear that, although
it struck down the unfair labor practice and filing period provisions of
the Rule, employers still face penalties for failing to post the
required notice. The NLRB may, on a case-by-case basis, find that an
employer' s failure to post the required notice may be evidence
supporting unfair labor practice charges and may extend the filing
period. Additionally, the Court let stand the Rule' s provision stating
that when an employer "knowingly and willfully" fails to post the notice
(i.e., fails to post the notice with knowledge of the requirement that
it do so), such facts may be considered evidence of unlawful motive in any unfair labor practice case involving other alleged violations of the NLRA.
The Rule, which becomes effective on April 30, 2012, requires employers to post and maintain an 11 x 17 inch notice that alerts workers to their rights under Section 7 of the NLRA. The
rule also requires businesses that use the Internet or an intranet site
to post human resources-related information to post the NLRB notice on
those sites as well. These obligations are unaffected by this decision.
Employers can download the notice (https://www.nlrb.gov/poster)
or obtain a copy from a regional NLRB office. The Rule was originally
to have taken effect on November 14, 2011; however, the NLRB extended
the Rule's effective date in response to the lawsuit.
It is likely that the employer organizations will appeal the
decision to the D.C. Circuit Court of Appeals. A decision in another
case filed by the United States Chamber of Commerce and South Carolina
Chamber of Commerce is still pending in U.S. District Court in
Charleston, South Carolina.
Notwithstanding ongoing legal challenges, this decision
requires that employers – especially those whose employees are not
unionized – review their workplace policies to maximize their ability to
respond to a union organizing effort.
*Patrick J. Hoban,
an OSBA Certified Specialist in Labor and Employment Law, appears
before the National Labor Relations Board and practices in all areas of
labor relations. For more information about the NLRB's posting
requirements or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
