Last Updated: 07/03/2013. Please bookmark this page to periodically check for updates. NLRB Update: Two Separate Courts of Appeal Reject NLRB Poster Rule
For the second time in as many months, an appeals court has struck down the National Labor Relations Board poster ruling. On June 14, 2013, the 4th Circuit Court of Appeals ruled that the NLRB had no power to mandate such a requirement, noting there was nothing in the National Labor Relations Act that granted the agency this authority. In addition, the ruling observes that congress—while giving other agencies explicit powers—had never permitted the NLRB to require notices.
In the three-judge ruling, the 4th Circuit decision found the NLRB's actions "unusual." The Court noted that the NLRB has "only rarely engaged in rulemaking during its seventy-seven year history," and had "never promulgated a notice-posting rule of any kind."
The panel also differentiated between proactive and reactive rulemaking, saying that the NLRB only has authority to respond to complaints and problems raised through unfair labor practices or occurring during representation elections. Proactively rulemaking to notify employees of their rights was not a law or duty the NLRB was tasked with enforcing, said the panel.
Just weeks prior to the 4th Circuit ruling, in a separate case, the D.C. Circuit also struck down the proposed NLRB requirement, saying that the poster violated free speech rights. That appeals court held that the poster rule is unenforceable.
The NLRB has not yet indicated how it will proceed—if at all—but many labor experts have concluded that this is likely the final outcome, meaning employers do not need to display the poster. It is highly unlikely companies will need to take any further action with regard to the poster in the future.
Last Updated October 16, 2012. 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.
The products below will have the NLRA Notice update you'll need for compliance postings:
Option 1: Order the Complete Labor Law Poster
Includes mandatory State, Federal, OSHA, and new mandatory NLRA poster. Your Complete Labor Law Poster will ship out to your location as soon as it becomes available.
ORDER NOW at $29.95.
Simplify your business's compliance. For as low as $24.95, get the Complete Labor Law Poster PLUS a replacement poster service program that will email updated posters or mail them directly to you depending on the service plan you choose:
e-Compliance™ Membership – Join now to get the Complete Labor Law Poster and get the updated posters emailed to you when updates occur. Simply download, print and post. Membership is as low as $24.95!
Compliance Protection Plan™ – Purchase this option to get the Complete Labor Law Poster and Complete Labor Law Poster replacements mailed directly to you when mandatory updates occur. Plans start as low as $62.99.
For more information on the above plan options, visit our Compliance Management Services page.
Option 2: Order the Federal Labor Law Poster
Includes new mandatory NLRA poster to ensure compliance. Your Federal Labor Law Poster will ship out to your location as soon as it becomes available.
Last Updated: 12/28/2011: Please bookmark this page to periodically check for updates.
National Labor Relations Board (NLRB) just extended the posting deadline to April 30, 2012.
Previous posting deadline of November 14, 2011 has just been extended to April 30, 2012. This will provide plenty of time for businesses to obtain and post the new required notice.
New Poster Issued by the National Labor Relations Board (NLRB)
On August 25th, the National Labor Relations Board (NLRB) adopted a new regulation that requires most private employers to post a notice informing employees of their right to organize and bargain collectively with their employers, and to engage in other protected concerted activity or to refrain from engaging in any of the above activity.
Note: All members of the Compliance Protection Plan™ and e-Compliance™ program participants will automatically receive new updates as soon as the posters are available.
How To Order The New Updated Complete Poster?
By law, all businesses are required to post mandatory labor law posters in a workplace common area. This will now include the NLRA poster scheduled to go into effect on April 30, 2012. Below are detailed ordering options that will assist in getting the poster before the deadline date.
The new NLRA notice comes with a mandatory size requirement of 11" x 17". With this mandatory size requirement, LaborLawCenter™ has taken the opportunity to take compliance to the next level. Our Complete Labor Law Poster is now more complete than ever. At no additional cost, we will now provide you with a Complete Labor Law Poster that will include the New NLRA notice, Federal posters, State Posters, and all required and highly recommended OSHA posters.
Again, updated posters will be available before the April posting deadline. Businesses that would like to take action on the NLRA requirements with the latest state changes should consider one of our ordering options and ensure compliance with NLRA today.
The products below will have the NLRA Notice update you'll need for compliance postings:
Frequently Asked Questions
Who is exempt from the NLRA Notice?
Most private employers are required to post the new notice. However, the Act specifically excludes public sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, and employees of air and rail carriers covered by the Railway Labor Act.
Are entities subject to the new NLRA required to comply with the law now?
No. Starting April 30, 2012, private employers whose workplaces fall under the National Labor Relations Act will be required to post this new employee rights notice where other workplace notices are typically required.
What exactly is the NLRA Act and what kind of information is on the NLRA Notice?
The Act basically informs employees of their rights to unionize under Federal laws. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.
What if I communicate with employees electronically?
In addition to the physical posting, the rule requires every covered employer to post the notice on an internet or intranet site if personnel rules and policies are customarily posted there. Employers are not required to distribute the posting by email, Twitter or other electronic means.
How will the Board enforce the rule?
Failure to post the notice may be treated as an unfair labor practice under the National Labor Relations Act. The Board investigates allegations of unfair labor practices made by employees, unions, employers, or other persons, but does not initiate enforcement action on its own.
What will be the consequences for failing to post the notice?
The Board expects that, in most cases, employers who fail to post the notice are unaware of the rule and will comply when requested by a Board agent. In such cases, the unfair labor practice case will typically be closed without further action. The Board also may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer. If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.
What is the difference between this new notice and the Employee Rights Required by Federal Contractors?
The content will be similar. Businesses that already have the Employee Rights Notice that was mandated previously will be in compliance. Businesses posting either versions will be considered in compliance. Previously only Federal contractors were required to post the notice. Now most private employers will be required to post the notice by April 30, 2012.
How is the new NLRA poster being incorporated on the Complete poster considering the size?
LaborLawCenter™ has conveniently incorporated all the required posting on the Complete Labor Law Poster without sacrificing size or visibility. This means, all State, Federal, OSHA, and NLRA notices will be on the Complete Labor Law Poster for one single convenient posting. The advantage is the new direction will cover a business's complete requirement for compliance with State, Federal, NLRA, and OSHA posting requirements. Compliance is complicated, let us simplify!
Will there be a new poster required for the NLRA?
Yes. The Complete Labor Law Posters and Federal Labor Law Posters will be updated to reflect the new NLRA required 11" x 17" posting requirement. In addition, businesses may choose to participate in an ongoing compliance program. For more information, visit our Compliance Management Services page.
Why should I place a labor law poster order today?
Placing an order now ensures that the NLRA compliance requirement is taken care of ahead of time. We will automatically ship your posters to you as soon as the notice is released and updated.
Things to know about the NLRA
The National Labor Relations Act
The NLRA was enacted by Congress in 1935. It was hailed at the time and for many years after as the Magna Carta of American labor. Previously, employers had been free to spy on, interrogate, discipline, discharge, and blacklist union members. But in the 1930's workers began to organize militantly. A great strike wave in 1933 and 1934 included citywide general strikes and factory takeovers. Violent confrontations occurred between workers trying to form unions and the police and private security forces defending the interests of anti-union employers. Some historians believe that Congress adopted the NLRA primarily in the hopes of averting greater, possible revolutionary, labor unrest.
The NLRA guaranteed workers the right to join unions without fear of management reprisal. It created the National Labor Relations Board (NLRB) to enforce this right and prohibited employers from committing unfair labor practices that might discourage organizing or prevent workers from negotiating a union contract. The recent new posting requirement was proposed by the National Labor Relations Board (NLRB) and is known as the NLRA Act poster or Employee Rights Notice. Previously only Federal contractors were required to post the notice but now, most private employers are required to post a similar notice by April 30, 2012.
The NLRA notice is not mandated as of now but if businesses choose to post the notice, we are offering a free downloadable version of the poster.
Please click here to download and print the 11" x 17" version or click here to download the poster split into two 8.5" x 11" sheets.
Poster must be printed on 11" x 17"
Note: Only Federal contractors and subcontractors are required to post the notice.