Last Updated: 10/16/2012. Please bookmark this page to periodically check for updates.

NLRB Poster Update: While the Appeal Proceeds, the NLRB Finds Other Ways to Continue the Requirement

As we informed you earlier this year, a DC appellate court issued an emergency injunction in April to temporarily delay the NLRB's proposed requirement for employers to post a notice about employee's rights until the court has the opportunity to decide whether the NLRB has sufficient authority to mandate such a requirement. If the injunction had not been issued, employers would have been required to post the notice by April 30, 2012.

Previously, another District Court—this time in South Carolina—ruled that without a congressional mandate, the Board lacked authority to enforce the requirement. While the NLRB did not set a new proposed deadline for employers to post the notice, it remained committed to the poster concept despite the multiple challenges to the Board's ability to move forward. Chairman of the Board, Mark Gaston Pierce, stated "We continue to believe that requiring employers to post this notice is well within the Board's authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law."

It's finally fall, and the D.C. appeal is underway. In September 2012, oral argument was heard in front of the federal three-judge panel, and a decision on the issue is expected in November or December of this year. The National Labor Relations Board has requested the Court reverse the lower court's decision to strike down significant parts of its prior ruling, whereas employer groups are asking the Court to follow the rationale of the South Carolina decision that the poster rule is entirely invalid.

Interestingly, though, the NLRB hasn't just accepted that the poster should wait on the sidelines while we wait for a decision. In fact, the Board has actively pushed the use of the poster—albeit not for all employers, but in areas the board can control.

One notable example is the case of General Die Casters, Inc—a case focused on Weingarten Rights when a meeting turns into an unanticipated discussion about the employee's behavior—where the NLRB required the employer to post a version of the notice as a penalty.

Watch this space for the outcome of the appeal, expected in later November or early December.

Opening Brief Filed in NLRB Poster Rule Appeal

On May 22, 2012, the National Association of Manufacturers filed its opening brief with the D.C. Court of Appeal. As we mentioned in a previous update, the DC appellate court issued an emergency injunction to temporarily delay the requirement for employers to post a notice about employee's rights. If the injunction had not been issued, employers would have been required to post the notice by April 30, 2012.

In the opening position statement, NAM asserts that the National Labor Relations Board has overstepped its "limited jurisdiction under the NLRA" by requiring employers to post the notice. The brief states, "specifically, the challenged Rule for the first time requires all six million employers covered by the Act to post a Notice of Employee Rights on their private property, regardless of whether such employers have committed any violation of the NLRA and regardless of whether such employers are the subjects of representation petitions before the Board."

NAM argues that the agency not only lacks authority to implement this rule, but that the poster itself is a violation of the constitution and the NLRA: "Millions of private employers are being compelled to post a notice on their private property in order to communicate a governmentally mandated message. Such a requirement is prohibited by the First Amendment and by Section 8(c) [of the NLRA]." The brief asserts that the poster is not a "neutral communication" mentioned in the act, but "instead omits important statements of employee rights that are not "pro-union" in character." NAM requests the appellate court to issue a permanent injunction against the implementation of the rule. The full text of the brief can be found here.

Oral argument has not yet been set, but is expected to occur in early Fall of 2012. In the interim, employers are not mandated to post the notice. We will bring you more updates as they occur.  If you currently have it posted, it is not a violation or misinformation to post the notice.
Note: The recent ruling on the poster only affects general businesses.  Federal Contractors and subcontractors are still required by law to post the DOL's version of the NLRA notice.

Last Updated April 17, 2012.

NLRA Notice Struck Down In U.S. District Court

The U.S. District Court of South Carolina ruled that the National Labor Relations Board (NLRB) exceeded its congressional authority when it issued a rule that required employers to post notices that detail workers' rights to unionize, and penalized non-complaint employers.

The ruling was to require all employers to post the 11" x 17" notice by April 30th, 2012 but has been postponed with no future enforcement date as of now.

We will keep you updated on its progress.

Last Updated March 2, 2012.

Federal District court has ruled that the NLRB's poster will be in effect.

As we wrote about before, in December 2010 the National Labor Relations Board issued a requirement that all employers covered by the National Labor Relations Act would be required to display a new poster, titled "Employee Rights Under the National Labor Relations Act." Although the posting requirement was originally scheduled for late 2011, organizations—including the National Federation of Independent Businesses, or NFIB, and the National Association of Manufacturers, or NAM—challenged the requirement in court. The legal action delayed the effective date more than once.

On March 2, 2012, the D.C. federal court released its ruling. The outcome was partially in favor of the NLRB, ruling in favor of the posting requirement itself, but simultaneously overturned some of the enforcement provisions of the NLRB's rule. The court found:

• The notice requirement is legal. The court determined that the NLRB can require employers to post the notice and that this is not an abuse of discretion, nor a violation of free speech.

• Simply failing to post the notice is not an automatic unfair practice. Just because the court decided failing to post the notice—by itself—is not an unfair practice, doesn't mean employers can disregard the obligation. In the March decision, the court stated that the NLRB would have to consider the specific facts and circumstances of each case. If it found that failing to post the notice interfered with employees' rights, then such failure might provide evidence of an unfair practice.

What should employers do?

Because of the court decision, the next step for employers is to post the notice by the April 30, 2012 deadline. But we haven't heard the end of this case yet. Only three days after the initial ruling, an appeal was filed to challenge the decision. Although the appeal also requested that the requirement to post be delayed, the district court ruled that the obligation remains in effect until the appellate court's decision, or unless the appellate court decides a stay is warranted.

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