(Further Update: On April 17th the DC Circuit Court of Appeals temporarily enjoined the NLRB’s rule requiring the posting of employee rights, which had been scheduled to take effect on April 30, 2012. The NLRB issued a public statement announcing, “In view of the DC Circuit’s order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court.”)
In our post of August 30, 2011, we advised that the National Labor Relations Board had adopted a final rule on August 25, 2011 (published on August 30) requiring most private-sector employers to notify employees of their rights under the National Labor Relations Act by posting a notice in a conspicuous location in the workplace. The poster requirement, designed to notify employees of their rights under the National Labor Relations Act, such as the right to organize a union, had an original deadline of November 14, 2011. This deadline for posting the notice was subsequently extended to April 30, 2012 because of litigation challenging the rule brought by various plaintiffs including the National Association of Manufacturers, the National Right to Work Legal Defense and Education Fund, Inc., the Coalition for a Democratic Workplace, and the National Federation of Independent Business. (As noted in our August 30th post: “This rule will undoubtedly be tested in the courts.”)
On March 2, 2012, the federal district court in Washington, D.C., upheld the statutory authority of the NLRB to require employers to display a poster informing employees of their rights under the National Labor Relations Act. Significantly, however, the court struck down two of the penalty provisions included in the NLRB’s final rule.
The court held that the National Labor Relations Act includes a “broad, express grant of rulemaking authority” to the NLRB, which permits the NLRB to require employers to post a notice informing employees of their rights under the Act. But the court agreed with the plaintiffs that two provision in the final rule violated the plain language of the Act: First, that any failure to post the notice could be deemed an unfair labor practice under the NLRA, and second, that failure to post a notice would allow the NLRB to extend the six‐month limitations for filing a charge against the employer alleging other unfair labor practices. While invalidating these aspects of the NLRB’s rule, the court noted that the NLRB may be able to prove in an appropriate case that a failure to post the notice constitutes an act of interference with protected rights and thus violates the Act. The court also noted that its rejection of the provision calling for tolling the statute of limitations for failure to post the notice did not prohibit a party alleging an unfair labor practice from establishing the elements of “equitable tolling” in a particular case. Moreover, the court did not strike down that part of the rule allowing an employer’s “knowing and willful” failure to post a notice to be considered evidence of unlawful motive.
NLRB Chairman Pearce released a statement on March 2nd, indicating that the NLRB would pursue the alternative left open by the court and make case-by‐case determinations of whether a failure to post the notice constitutes an unfair labor practice.
The plaintiffs’ have appealed the court’s decision to the U.S. Court of Appeals for the D.C. Circuit and have asked the appellate court to enjoin the posting requirement while the appeal is pending. Unless a stay is granted, the deadline remains April 30, 2012.