In January 2011, the
National Labor Relations Board (NLRB) promulgated a
rule requiring private employers to post a notice informing employees of their
rights under the National Labor Relations Act (NLRA). The rule required
that the notice be posted in a "conspicuous place" and provided for
penalties for employers who failed to comply. If the NLRB determined that an
employer had failed to comply, it could toll the statute of limitations for an
employee who files an unfair labor practice (ULP) charge for any alleged
conduct by the employer--not only for conduct relating to the failure to post
the notice. A failure to post, alone, also would constitute an ULP.
The rule prompted a
small fury among the business community, which challenged the NLRB's authority
to promulgate such a rule. A lawsuit was filed by several organizations,
including the National Association of Manufacturers and the National Right to
Work Legal Defense and Education Foundation. The suit sought to enjoin the
enforcement of the rule, the effective date of which has been delayed several
times and currently is set for April 30, 2012.
The U.S. District Court
for the District of Columbia issued a ruling in the case on March 2, 2012,
striking down part of the notice-posting rule. The court found that the NLRB
does have the legal authority to require employers to post a notice--including
the notice at issue. The court's decision was not entirely in favor of the
NLRB, however, and it rejected the proposed penalties associated with
noncompliance. Specifically, the court held that the NLRB does not have
authority to extend the statute of limitations to file an ULP charge or to
determine that noncompliance constitutes unlawful interference with employees'
Thus, the NLRB will not
be able to find that an employer engaged in an ULP merely by failing to post
the notice as required by the rule. Without this enforcement mechanism, the
impact of the posting requirement is reduced significantly. At the same time,
though, failure to post the notice could be evidence in support of another ULP
A separate suit is still pending in a federal court in South Carolina and it is
unclear how the outcome of that case will impact the decision from the District
of Columbia. At this time, though, it appears that the NLRB posting requirement
will take effect on April 30, 2012. At that time, all employers subject to the
NLRA will be required to add yet another poster to their current
collections--this one relating to the right of employees to unionize. A copy of
the NLRB's suggested posting is available at www.nlrb.gov/poster.
Read more Labor and Employment Law insights
from Margaret (Molly) DiBianca in the Delaware
Employment Law Blog.
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