Court Issues Mixed-Bag for Employers on NLRB Notice-Posting Rule

Alerts / March 5, 2012

On Friday, March 2, a federal district judge in Washington, D.C., issued a 46-page opinion upholding the National Labor Relations Board's (NLRB or Board) authority to issue a rule requiring employers to post notices informing workers of their right to unionize—currently set to take effect on April 30. (Nat'l Ass'n of Mfrs. v. NLRB, D.D.C., No. 11-cv-1629, 3/2/12). U.S. District Judge Amy Berman Jackson, however, did strike down the Board's rule to the extent that it stated that failure to post a notice automatically constituted an unfair labor practice and could be the basis for tolling the six-month statute of limitations for filing an unfair labor practice with the Board.

As we previously informed you in our August 30, 2011, alert, the NLRB's notice rule requires all private sector employers under the jurisdiction of the National Labor Relations Act (NLRA or Act) to post Board-approved notices informing employees of the rights to unionize in conspicuous locations in the workplace, as well on their company website or Intranet site if personnel policies are customarily posted electronically. The employer must post the notice in another language if at least 20 percent of the employees are not proficient in English and speak the other language. According to the Board's rule, failure to comply with the posting requirement would be treated as an unfair labor practice under the NLRA and such non-compliance could be used to justify tolling of the statutory six-month statute of limitations period with regard to other contemporaneous violations. Initally, the rule initially was set to go into effect on November 1, 2011; however, the Board postponed implementation to April 30, 2012.

The rule was subject to widespread criticism from pro-employer organizations and politicians. Two separate groups of plaintiffs filed lawsuits in U.S. District Court for District of Columbia shortly after the NLRB promulgated the rule. The two cases ultimately were consolidated before Judge Jackson. The plaintiffs and the NLRB each filed motions for summary judgment advocating their respective positions on the legality of the rule.

In her March 2 opinion, Judge Jackson granted in part and denied in part the plaintiffs' separate summary judgment motions, and she similarly granted in part and denied in part the NLRB's summary judgment motion. The Court rejected the plaintiffs' argument that the promulgation of the notice rule went beyond the NLRB's authority and violated the plaintiffs' First Amendment right to refrain from speaking. Instead, Judge Jackson, held that the NLRA granted the Board "broad rule-making authority" to implement the provisions of the Act, and that the Board "did not exceed its statutory authority in promulgating Subpart A of the challenged rule—the notice posting provision." Judge Jackson also found, with respect to the plaintiffs' First Amendment argument, that the notice posting requirement did not compel employers to say anything, and that the poster was "government speech."

Judge Jackson, however, did agree with the plaintiffs that the rule's provisions defining a failure to post as an unfair labor practice, and tolling the statute of limitations in unfair labor practice actions involving job sites where the notice was not posted, were invalid. Specifically, since Congress defined in the NLRA what were unfair labor practices, as well as the statute of limitations, the Board lawfully could not exceed what Congress had set forth in the Act. While the Court did state that the NLRB, upon a specific factual finding of unlawful conduct, could conclude that failure to post a notice constituted an unfair labor practice, it could not under the Act make a "blanket determination" that a failure to post is always an unfair labor practice.

Also on March 2, Judge Jackson denied a motion from various plaintiffs to supplement or amend their complaints to raise the argument that the NLRB lost the authority to implement and enforce the notice-posting rule because President Barack Obama's recent appointment of new Board members was null and void, leaving the Board with less than the three-member quorum the NLRB needs to act. In so doing, Judge Jackson found that the recess-appointment issue post-dates the Board's promulgation of the notice rule; thus, the issue was irrelevant to the analysis of the rule's validity.

At least one of the plaintiffs already has stated that it plans to appeal the Court's decision, and there is another federal court in South Carolina reviewing the validity of the rule (Chamber of Commerce v. NLRB, D.S.C., No. 11-cv-2516). As a result, this issue is far from resolved. Nevertheless, in the wake of Judge Jackson's decision, employers should begin planning for the possibility of having notices in place by April 30.

If you have any questions about this decision or how it may impact your business, please contact any member of Baker Hostetler's Labor Relations Team.

Authorship Credit: Patrick M. Muldowney

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