Mar 28, 2012

Judge Rules That NLRA Notice Must Be Posted By Non-Union Private Employers

As we reported in an SGR Client Alert last August, the National Labor Relations Board (the “Board”) adopted new regulations that require employers to place a National Labor Relations Act (“NLRA”) poster among the list of already-required state and federal employment postings in the workplace. While most employers are aware of the general concept of unionized workforces, most are unaffected by union activity, and few are directly impacted by the Board’s regulations. That will change under the controversial new regulations that require all private employers subject to the NLRA (as discussed in the client alert linked to above) to post a notification of employees’ rights under the NLRA in a conspicuous place where notices to employees are typically posted. The Board explained its motivation for creating the new rule in its introductory summary:

The Board believes that many employees protected by the NLRA are unaware of their rights under the statute and that the rule will increase knowledge of the NLRA among employees, in order to better enable the exercise of rights under the statute. A beneficial side effect may well be the promotion of statutory compliance by employers and unions.

Final Rule for Notification of Employee Rights, 76 Fed. Reg. 54006 (August 30, 2011). As we reported last October in an SGR Client Alert, several challenges to the Board’s authority to promulgate the posting requirement were initiated, most notably in the U.S. District Court for the District of Columbia. That Court in National Association of Manufacturers v. NLRB, recently ruled that the Board did have the authority to require the notice, but it did not have the authority to enforce non-compliance as laid out in the rule. The Judge found that the Board had exceeded the authority granted to it by Congress by promulgating that it would treat any failure to post the required notice as an “unfair labor practice.” So, according to the D.C. Court, the mandatory-posting rule is applicable and on the books, but the Board has no way to penalize employers that do not follow it.

On March 12, 2012, the National Association of Manufacturers and several other groups filed an emergency motion asking the appeals court to enjoin the NLRB from implementing the rule. The NLRB then disclosed that it may still treat individual failures as violations of the NLRA, but “the charged party would have an adequate opportunity to secure judicial review of that decision before being required to comply with any Board order.” The NLRB also indicated that it may also appeal the lower court’s invalidation of the enforcement portions of the rule. Because of these statements and the challenge to the posting rule in South Carolina, the legal battle surrounding the validity of the rule is likely far from over. However, employers should be aware that, unless successfully challenged, the regulation becomes effective on April 30, 2012 as outlined here, and the requirement to post notice of employees’ rights under the NLRA will then be applicable to all private employers who fall under the jurisdictional reach of the NLRA.

If you have any questions about the new rule, contact the labor and employment professional at Smith, Gambrell & Russell, LLP with whom you normally work.

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