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Employer Law Report

Federal Court Upholds NLRB Posting Rule

Posted in Labor Relations

In a decision on Friday, March 2, the federal District Court for the District of Columbia upheld the right of the National Labor Relations Board (NLRB) to require all employers to post a notice regarding employee rights to join unions. National Association of Manufacturers, et al. v. National Labor Relations Board, et al., U.S.D.C. 1:11-cv-01629. The posting rule is currently scheduled to take effect on April 30, 2012. At least one of the parties that filed the challenge in the D.C. Circuit has promised to appeal and there is a similar challenge to the rule still pending in federal district court in South Carolina. Chamber of Commerce of the United States, et al. v. National Labor Relations Board, (Dist. S. C.) 2:11-cv-02516.

Judge Amy Berman Jackson upheld the NLRB’s right to impose the posting rule, finding that the National Labor Relations Act (NLRA) gives the NLRB broad authority to make enforcement rules. The Judge rejected arguments by the National Association of Manufacturers, the National Right-To-Work Legal Defense & Education Foundation, and the Coalition for a Democratic Workplace challenging the NLRB’s right to require posting. However, the Court did not reject all of the arguments challenging the posting rule. The Court ruled that the NLRB overstepped its authority by including in the rule provisions saying that failure to post is automatically an unfair labor practice. The Court also struck down that portion of the rule which said that if an employer fails to post, the time limit for an employee to file an unfair labor practice charge would not begin to run.

A few important questions remain after this decision. First and foremost, will the NLRB stand firm on its April 30th deadline for posting, even if this decision is appealed and even if the South Carolina case is still pending? We will follow that question closely. Another question raised by this decision is how the NLRB will enforce the posting rule, considering the Court’s ruling that failure to post is not, standing alone, an unfair labor practice and that failure to post does not have the effect of delaying the start of the time limit for filing an unfair labor practice charge.

In earlier Blog posts, we have commented on the posting requirement, the impact on employers, and these legal challenges. (See previous blogs:  "NLRB Postpones Effective Date for Posting Again;" "Update:  Legal Challenges to NLRB Posting Rule;" "Arguments Begin In Legal Challenges to NLRB Posting Rule;" "NLRB Posting Requirement Delay – New Date – January 31, 2012;" "Update:  NLRB Releases Union Organizing Poster on Website; Challenges to Rule Begin;" "NLRB Issues Final Rule Requiring All Employers to Post Notice About Union Organizing Rights;" and "NLRB Seems Determined to Make Union Organizing More Easy.")  As we noted previously, this posting will be required of all employers who are subject to the NLRB’s jurisdiction and, for all intents and purposes, that means most companies in the private sector. Considering that the NLRB posting requirement places the issue of union organizing prominently in front of employees, employers should be re-visiting their efforts to maintain non-union status. As we noted in a previous post:

Between now and the April 30 required posting date, employers should consider their overall measures for staying union-free. Are workplace policies, benefits, and management/ supervisor behavior of the sort that employees are less likely to feel a need for union representation? Have supervisors been made aware of the critical role that they play in providing a workplace where employees will be less likely to feel a need for union representation? Are supervisors aware of the proper, legal way to respond if union organizing activity does happen? Now is an opportune time for companies to re-examine their commitment to these things and establish or continue best measures for union avoidance.