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NLRB Poster Update

03.22.2012

As previously reported, the National Labor Relations Board (“NLRB”) implemented a new rule that requires employers covered by the National Labor Relations Act (“NLRA”) to post a new notice entitled “Employee Rights Under the National Labor Relations Act.” This rule applies to all private-sector employers, excluding agricultural and domestic employers. More importantly, this rule applies even if your workforce is not currently unionized.

Currently, the NLRA notice posting requirement becomes effective April 30, 2012.

The notice describes the NLRA and it states the following:

Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment. • Form, join or assist a union.

• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.

• Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union.

• Take action with one or more co-workers to improve your working conditions by among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Chose not to do any of these activities, including joining or remaining a member of a union.

Since the announcement of this rule, several lawsuits have been filed to block its implementation claiming that the NLRB exceeded its authority under the NLRA. On March 2, 2012, a decision was issued by the U.S. District Court for the District of Columbia in the consolidated lawsuits filed by plaintiffs National Association of Manufacturers and the National Right to Work Legal Defense and Education Foundation against the NLRB. The Court held that the NLRA granted the NLRB broad rulemaking authority and that the NLRB “did not exceed its statutory authority in promulgating … the notice posting provision.” However, the Court went on to state that the NLRB rule provisions which state that an employer’s failure to post the notice will automatically be deemed an unfair labor practice under the NLRA and that failure to post the notice will toll the six-month statute of limitations in unfair labor practice actions against employers did violate the NLRA and are unenforceable. It is important to note that this ruling does not mean that an employer’s failure to post the notice cannot be considered as evidence of an unfair labor practice by an employer, but the NLRB “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.”

On March 5, 2012, the plantiffs (now appellants) filed a notice of appeal challenging this decision and on March 12, 2012, they also filed an Emergency Motion for Injunction Pending Appeal and/or For Expedited Consideration in the United States Court of Appeals for the District of Columbia Circuit claiming that “an injunction pending appeal will simply maintain the status quo in order to allow this Court the time needed to delve fully into the complicated issues presented and render a definitive decision. Maintaining the status quo for this short period of time best serves the public interest.” This argument was also raised by the plaintiffs/appellants:

The Board has waited more than 75 years to publish the challenged Rule requiring employers to post a notice of employee rights, and the Board can therefore afford to wait a short time longer before the Rule goes into effect. The Board will suffer no significant harm if an injunction is granted pending appeal.

What Does This Mean For Employers? Our recommendation is that unless there is another delay of the April 30 deadline, employers should post the NLRB notice by April 30, 2012. Even though the NLRB cannot automatically impose penalties for failing to post, it may very likely find the failure to post, in individual cases, to be additional evidence in an unfair labor charge, such as further evidence of intent or anti-union animus on the part of the employer, or even evidence that, when combined with other evidence, such as employee allegations that they were unaware of their specific rights, may establish grounds for tolling the statute of limitations or overturning the results of elections.

Downloadable copies of the official notice are available on the NLRB’s website, https://www.nlrb.gov/poster. Employers can download the notice and print it out in color or black and white. Free copies are also available from any NLRB regional office.

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