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Federal Appeals Court Enjoins NLRB's Posting Rule


FEDERAL APPEALS COURT FOR DISTRICT OF COLUMBIA ENJOINS NLRB POSTER

Today, the federal appeals court for the District of Columbia enjoined the NLRB from requiring that its Employee Rights poster be posted pending determination of the appeal filed by the National Association of Manufacturers from the decision by the federal district court of the District of Columbia upholding the NLRB's authority to require the posting of the notice.

Noting the decision of the district court of South Carolina's decision finding the posting requirement to be unlawful and the likelihood that the NLRB will cross appeal the NAM decision because of the court's denial of the power of the NLRB to enforce penalties for the refusal of an employer to post the notice, the Court of Appeals prohibited the implementation of the posting rule until after it had heard argument in September and decided all of the issues presently before it.

For now, employers who are subject to the NLRB's jurisdiction and who are not federal contractors can ignore the April 30 posting date for the Employee Rights poster. 

We will keep you posted about the poster.

 
 
 
 

FEDERAL COURT FINDS NLRB'S EMPLOYEE RIGHTS POSTING UNLAWFUL


FEDERAL DISTRICT COURT DECLARES NLRB’S “EMPLOYEE RIGHTS POSTER” UNLAWFUL ….BUT DECISION MAY NOT STOP YOU FROM HAVING TO POST IT

 

Judge David Norton of the federal district court in South Carolina in a case brought by the South Carolina Chamber of Commerce on Friday, April 13, held that the rule announced by the NLRB in September of last year that employers must post a Notice of Employee Rights under the National Labor Relations Act exceeded the Board’s statutory authority and is, therefore, unlawful.  Judge Norton held:

 

Based on the statutory scheme, legislative history, history of evolving congressional regulation in the area, and a consideration of other federal labor statutes, the court finds that Congress did not intend to impose a notice-posting obligation on employers, nor did it explicitly or implicitly delegate authority to the Board to regulate employers in this manner.”

 

In the opinion, the Judge excoriated the Board by noting that:,

 

“The Board also went seventy-five years without promulgating a notice-posting rule, but it has now decided to flex its newly-discovered rulemaking muscles,”

 

As noted in my blog last fall when the proposed rule was first published, nothing in the National Labor Relations Act mentions, let alone authorizes the Board to compel employers to post, a notice advertising the protections of the Act for those employees who engage in or contemplate engaging in union activity.  Simply, even the Obama Board cannot ignore the law to further its partisan agenda.

 

The Board’s action was contrasted to the explicit authority granted by Congress to various other agencies to publish and require notices in non-remedial situations, e.g., employment discrimination, workplace safety.

 

This decision conflicts with an earlier holding by Judge Amy Berman Jackson of the federal district court of the District of Columba that upheld the Board’s authority to require the posting. 

 

Unfortunately, it is not entirely clear what the Board or the courts will do now.  The South Carolina decision is just that, a South Carolina decision.  It is possible that the Board may take the position that its effect will not go beyond that court's jurisdiction.  The district court of South Carolina is in the Fourth Circuit (Virginia, West Virginia, Maryland, North Carolina, South Carolina).  Consequently, unless you are in one of those states, the decision may not shield you from the obligation to post the notice by April 30.  However, it is possible that the South Carolina decision will be construed to have a broader application because it appears to enjoin the Board and its General Counsel from doing anything to enforce the rule.  

For now, employers who do not wish to voluntarily post the notice should wait until their obligation, if any, is further clarified or, at least, until after the Board indicates what it believes the application of the South Carolina decision should be.     

 

Hopefully, the Board will suspend generally the obligation to post the notice, pending the resolution of the discrepancy between the holdings of the District of Columbia and South Carolina district courts and other outstanding issues.  Most certainly, the Board will appeal the South Carolina decision, just as the DC decision has already been appealed.  What it will do or be permitted to do in the meantime is still unclear.

 

One can hope the Board will again delay the application of the rule to permit time for these issues to be resolved, but prudence suggest that we not depend on the realization of our hopes when it comes to this Labor Board. 

 

 

 

 

 

 

 

 

 

 

 

 

 
 
 
 

NLRB'S EMPLOYEE RIGHTS POSTER AND HOW TO DEAL WITH IT


NLRB’S EMPLOYEE RIGHTS NOTICE AND HOW TO DEAL WITH IT

The Board issued a press release today that its Notice of Employee Rights is now available at www.nlrb.gov/poster. 

The poster must be placed on a bulletin board with the other government-mandated posters or posted on an electronic bulletin board, if that is the way the employer communicates policies to its employees.  The posting must occur on or before November 14, 2011.  If 20% or more of the employee population communicates in a language other than English, the employer is required to post the notice in that other language.  If the Board does not have a poster in the other language, the employer may post a notice only in English until the Board creates one in the other language.  Government contractors that have been posting the DOL notice of Employee Rights directed by Executive Order do not have to post both the DOL and nlrb posters.  One or the other will suffice.  A failure/refusal to post the poster may result in a delay in the running of the statute of limitations for the filing of unfair labor practices, a finding of the commission of an unfair labor practice and/or a presumption of unlawful union animus.

Those are the bare facts and the bare minimum of what must be done, assuming that the current lawsuit by the NAM requesting that the posting be enjoined is unsuccessful. 

The posting of the Employee Rights poster may be ignored by your employees, as they probably ignore the other government-mandated posters.

However, in part because of its newness and in part because of buzz, employees may not ignore it and employers may expect questions and discussion in the workplace around the issue of unions and union representation.  Some employers fear that the poster will promote unionization.

If the latter possibilities are of concern, you should do the following:

·                     Prior to posting, provide it to your supervisors and train them concerning what it is, what it means and what to say to employees who express interest in the possibility of organizing into a union.

·                     At the time of posting, create and publish in your handbook or other similar cache of policies a statement of why you wish to remain union free and why a union is not necessary in your workplace.  Of course, such a statement will require you to define your position on each of the relevant issues and enumerate the policies you have that make a union unnecessary.  In addition to the union-free statement, I recommend a short description of what a union authorization card is and means to give you a leg up in the event of organizing.

 

I have recently been asked whether an employer should post next to the NLRB Poster or otherwise distribute a memo which more fully explains employee rights not to engage in union activity, contains a discussion about what a union can and cannot do and states the value of remaining union free.  While this is appealing, it would be risky.

Currently, there are only two types of NLRB notices: notice of an upcoming election and a notice of employee rights and employer requirements following the settlement or adjudication of an unfair labor practice charge (remedial notices).  Since the mid-sixties, the NLRB has taken the position that any memorandum or other communication that attempts to explain or expand upon one of their remedial notices violates the law.  Whether the Board will take the same position with regard to explanatory memos relating to the Employee Rights poster is unknown.  Until that issue is resolved at someone else’s expense, I think it is too risky.  

A better course of action would be to ensure that your union-free systems are well designed and operating as intended.  Most of all, your supervisors need to know what to say when an employee asks, at a time they least expect it, “do you think we should have a union?”  If you are not sure that your supervisors will respond positively and effectively, without violating the law, you need to consider doing now whatever may be necessary to cure the deficiency.

One would like to think that employees will pay no more attention to the Employee Rights poster than any other government-mandated poster.  Each workplace has its own personality and that may occur in many places.  Waiting to do something until you know just how your employees will react to the posting, however, may put you behind the curve.  Union activity may have already taken hold. 

 
 
 
 
 

James Redeker

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.