Update: NLRB Posting Requirement

Posted on March 09, 2012

We've kept you updated about the status of the National Labor Relations Board ("NLRB") Posting rule that was finalized in late 2011. The rule, which is set to become effective on April 30, establishes a new posting requirement forcing employers to display a workplace rights poster, similar to those already required under some state and federal labor and employment laws. The poster outlines and explains employees' union organizing and collective bargaining rights under the National Labor Relations Act ("NLRA"). Even before its implementation, the rule has faced judicial challenges and postponements. The D.C. Circuit Court addressed one of those challenges on Friday in National Association of Manufacturers v. NLRB, and the Court upheld the posting requirement but rejected the enforcement provisions of the rule. However, employers must note that while the D.C. Circuit Court's decision is important to the interpretation of this rule, this case is not the final word on the rule's application to employers. The status of this rule remains in flux, as explained below.

In the case, several employers and trade associations asked the Court to decide whether the NLRBwas given the authority under the NLRA to require private-sector employers to display these posters, noting that the NLRB was not given authority to enact "general rules for the workplace." Unfortunately for employers, the Court disagreed. The Court decided that the NLRB lawfully enacted the rule requiring the poster display under its broad authority to carry out the goals of the NLRA.According to this Court, employers will still have to comply with the rule by the current compliance date: April 30, 2012.

However, the Court eliminated most of the NLRB's ability to enforce the poster requirement. First, the Court found that the NLRB went too far when it gave itself the ability to automatically deem an employer's failure to post the notice an unfair labor practice. Instead, the Court held that the Board must demonstrate that an employer knowingly and willfully failed to display the poster in order to sanction employers for failure to post if the Board finds that the employer's action "interferes with, restrains or coerces employees" in the exercise of their guaranteed rights. Based on the D.C. Circuit Court's interpretation, failure to display the poster without unlawful motive cannot constitute an unfair labor practice. Additionally, the NLRB may not toll the statute of limitations in unfair labor practice cases for the period during which the employer failed to display the poster. These rulings all but eliminate any enforcement ability the NLRB gave itself under the rule. It is important to note that theD.C. Circuit Court's decision does not alter the effective date of theNLRB's Posting rule or otherwise excuse employers from complying with the rule. According to theD.C. Circuit Court decision, employers must display the poster by April 30, 2012 in accordance with the NLRB'srRule. This Court's interpretation also means that if an employer knowingly and willfully fails to display the poster as required under the rule, that decision can be used against the employer to demonstrate a violation of the NLRA.  Employers should use caution before relying on the Court's decision to the extent it is contrary to theNLRB's rule. The Court's decision has been appealed by the National Manufacturers Association, and neither the rule nor the D.C. Circuit's interpretation have been considered in other jurisdictions. We anticipate that decisions from other lawsuits arising from this posting requirement will surface soon. Until then, employers should plan to display the poster by April 30, as required.  If you have questions about this rule or this decision, please contact any Knox Labor & Employment attorney at (814) 459-2800.

Article written by Carsen N. Ruperto.

Labor & Employment Department Attorneys

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