Court Invalidates Portions of NLRB Notice Posting Rule


By Ben Mathis and La’Vonda McLean

After several postponements, the National Labor Relations Board (“NLRB”) was moving forward with its posting requirements (“Notification of Employee Rights Under the National Labor Relations Act”), regarding employee union rights with a compliance date of April 30, 2012.

On March 2, 2012, a federal judge in the District of Columbia upheld the right of the NLRB to require notice posting. Importantly, however, the Court struck down the provisions of the regulation making it an Unfair Labor Practice not to post the notice and tolling the six-month statute of limitations for an employer’s failure to post the notice.

The Court Holds the NLRB is Authorized to Require Employers Post The Notice
The National Association of Manufacturers (“NAM”) argued that the NLRB’s notice posting requirement exceeded its authority to order a mandatory posting by all employers. Nonetheless, the Court held the NLRB was granted by Congress the rulemaking authority to require employers to post a notice informing employees of their rights, including union organizing rights.
The Failure to Post the Notice is Not an Automatic Unfair Labor Practice
The NAM also challenged the NLRB’s authority to deem an employer’s failure to post the notice to be an Unfair Labor Practice under the Act. The NLRB provision explaining the consequences of failing to post the notice states “Failure to post the employee notice may be found to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by NLRA Section 7…”
The Court agreed with the NAM that failure to post the notice could not automatically constitute an Unfair Labor Practice. In this regard, the Court found that the NLRB exceeded its regulatory authority, stating “the Board must make a specific finding based on the facts and circumstances in the individual case before it that the failure to post interfered with the employee’s exercise of his or her rights.”
The Tolling of the Six-Month Statute of Limitations Violates the NLRA
NAM also challenged the NLRB’s rule to toll the NLRA’s six-month statute of limitations for failing to post the notice. The NLRB provision states:
When an employee files an unfair labor practice charge, the Board may find it appropriate to excuse the employee from the requirement that charges be filed within six months after the occurrence of the allegedly unlawful conduct if the employer has failed to post the required employee notice unless the employee has received actual or constructive notice that the conduct complained of is unlawful.
The Court deemed this improper. Specifically, the Court noted that the Act authorizes the NLRB to toll the statute of limitations, but that such tolling is not automatic and must be supported by proof on a case by case basis.
Implications of the Court’s Ruling
The NLRB’s posting requirement has been a lightning rod for criticism by employers that the posting notice is an improper intrusion on employer rights and an implied endorsement by the federal government that unions are encouraged. Most certainly, the decision by the District of Columbia lower court will be appealed, and the outcome remains to be seen. However, if the rationale of the NAM decision stands, it may well be that the posting notice turns out to be the proverbial “toothless tiger.” Without the sanction of an automatic finding of an Unfair Labor Practice, most employers likely will face little in the way of an effective penalty if they don’t post the new notice.
For more information, contact Ben Mathis at 770.818.1402 or[email protected] or La’Vonda McLean at 770.818.4247 or[email protected].