Last week, the federal district court in the District of Columbia ruled that the National Labor Relations Board (NLRB) has sufficient rulemaking authority under the National Labor Relations Act (NLRA) to require most private sector employers to post workplace notices that inform employees of their rights under the NLRA. The effective date for compliance with the NLRB rule, originally set for November 14, 2011, had been postponed to April 30, 2012 pending the court’s review. Many in the employer community, including the Coalition for a Democratic Workplace, challenged the rule and its enforcement provisions in court on multiple grounds.
The court said the NLRB could require the notice posting, but imposed some procedural limits on the NLRB's authority to penalize employers for not doing so. Under the rule, employers that fail to post the notice would be subject to unfair labor practice charge. In addition, the Board could toll the statutory six-month time limit employees/unions have to file unfair labor practices charges in other matters, under the theory that without the notice, employees would not be aware of their rights and could not file timely charges.
The court did nullify a number of enforcement actions in the NLRB rule. To begin with, the NLRB does not possess the authority to “make a blanket advance determination that an employer’s failure to post will always constitute an unfair labor practice.” As an alternative, the NLRB must make a specific finding based on the evidence and circumstances in an individual case that the failure to post actually interfered with employee rights under the NLRA. In addition, the NLRB has no authority to extend the time period (generally six months) set by Congress for filing unfair labor practice charges against an employer, simply because the employer has not posted the notice. The court declared each provision void and unenforceable.
Finally, the court affirmed as “valid” a part of the rule that allows the NLRB to consider an employer’s knowing and willful refusal to comply with posting requirements as evidence of the employer’s unlawful motive in a case. In the court’s opinion, the plaintiffs complaint did not “specifically challenge” this provision. It is likely that both sides will appeal this divided ruling. ASA, along with the Coalition for a Democratic Workplace continue to stand for commonsense solutions to managing the employer-employee relationship without the heavy-hand of the NLRB.
To see an FAQ and announcement from the NLRB, click here.