Federal Court Upholds Portion of NLRB Posting Rule

On March 2, 2012, a federal judge in the District of Columbia ruled that although the National Labor Relations Board (“NLRB”) has the authority to require employers to hang a poster notifying employees of their rights under the National Labor Relations Act (“NLRA”), it did not have the authority to assess the penalties enumerated in the rule for an employer’s failure to comply. In National Association of Manufacturers v. NLRB, No. 11-1629 (D.D.C. Mar. 2, 2012), Judge Amy Berman Jackson held that the rule’s automatic penalties for failing to comply with the posting requirement - an unfair labor practice and an extension of the amount of time for the filing of such a charge - exceeded the NLRB’s authority.

In December 2010, the NLRB issued a proposed rule requiring most private sector employers to hang a poster notifying employees of their rights under the NLRA. The rule was to become effective in November 2011 but was delayed twice and is now scheduled to go into effect on April 30, 2012. The rule included two provisions that would have been used to enforce the hanging of the poster. First, the rule provided that any employer who failed to hang the poster was guilty of an unfair labor practice. Secondly, the rule provided that if an employer failed to post the poster, the typical six month statute of limitations for filing an unfair labor practice complaint against that employer could be extended indefinitely.

Judge Jackson, an appointee of President Obama, held that Section 6 of the NLRA provides the NLRB with the authority to engage in such rulemaking. She pointed to the broad language authorizing the Board to issue “necessary” regulations and held that, “[t]he Board is not attempting to regulate entities or individuals other than those that Congress expressly authorized it to regulate, and it is not extending its reach to cover activities that do not fall within the ambit of the Act.”

Nevertheless, Judge Jackson found that the Board exceeded its authority by issuing a rule with penalty provisions inconsistent with the NLRA. In particular, the court held that simply failing to display the new NLRB poster cannot automatically trigger a finding of an unfair labor practice. The NLRA is clear that an employer must actually impede or hamper an employee’s exercise of the rights guaranteed by the Act to be guilty of an unfair labor practice. Where an employer’s failure to post the notice is intended to or actually does impede or hamper an employee’s exercise of his or her rights, Judge Jackson found the Board can find an unfair labor practice, but such a conclusion can only be reached by examining the specific facts of each individual case.

Similarly, the court also found that the NLRB’s rule extending the amount of time for the filing of an unfair labor practice charge in cases where employers fail to hang the poster violates the clear statute of limitations set out in the NLRA. The Act provides a six month statute of limitations and Judge Jackson noted that “Congress plainly mandated a short time period during which an aggrieved person must file a charge.” Although the Board has the authority to extend the time limit in appropriate situations, this must be done on a case-by-case basis. The rule’s automatic extension would circumvent Congress’s intent and, as such, is invalid as a matter of law.

As a result of this ruling, beginning on April 30, 2012. most private sector employers will still be required to hang the NLRB poster containing pro-union messaging in their workplaces. Although failure to hang the poster cannot automatically result in an unfair labor practice charge after this decision, employers who choose not to comply open themselves up to an unfavorable Board ruling if an unfair labor practice charge is filed. Such a failure to post could be used as evidence of employer interference with an employee’s NLRA rights. The poster can be downloaded and printed from the NLRB’s website (www.nlrb.gov). Finally, employers may post a properly drafted notice to employees which sets forth the employer’s philosophy on unionization and all of the employee’s rights under the NLRA, including the right to refrain from union activity.

If you have any questions regarding this article or any other employment or labor law question, please contact the authors of this article or any attorney at Peters, Revnew, Kappenman & Anderson, P.A. at (952) 896-1700.

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