Arguments Begin In Legal Challenges to NLRB Posting Rule

Posted on November 18, 2011 by Mike Underwood

As we reported previously, the National Labor Relations Board ("NLRB") issued a rule in August requiring all employers to post workplace notices about employee rights to join a union. This effort by the NLRB to require posting about union organizing rights in all workplaces has caught the attention of the employer community more than any NLRB action in recent memory. The rule reaches into the workplace of all employers except for those few which are outside of the NLRB's jurisdiction. [See our earlier post that outlines NLRB jurisdiction]. Briefly, if you are wondering if you are covered, you probably are covered. The original effective date for the rule was to have been November 14, 2011, but that effective date was delayed when lawsuits were filed in two federal district courts challenging the NLRB's authority to issue such a rule. The new effective date is January 31, 2012 and the arguments in the lawsuits challenging the posting rule are beginning to take shape.

In a case before the federal District Court for the District of Columbia, all of the parties filed motions for summary judgment on October 26, 2011. (National Ass'n. of Mfrs. v. NLRB, D.D.C., No. 11-CV-1629). In addition to the National Association of Manufacturers, others challenging the NLRB rule in this case include the National Right to Work Legal Defense and Education Fund, Inc., the Coalition for a Democratic Workplace, the National Federation of Independent Businesses, and several specific employers. The primary arguments being made by those challenging the posting rule include:

  • The NLRB's jurisdiction is limited to specific cases where unions are trying to organize employees (representation cases) and cases where an employer has been charged with committing an unfair labor practice ("ULP"). The law does not allow the NLRB to impose obligations on employers which are not the subject of a representation case or being charged with a ULP. Therefore, the NLRB cannot require all employers to post the notice.
  • The NLRB has exceeded its authority by stating in its rule that the failure to post will be considered a ULP. The NLRB cannot create new ULP's which are not found in the National Labor Relations Act and that law does not include a posting requirement.

The primary arguments made by the NLRB in support of its posting requirement are:

  • The NLRB has authority to enforce employee rights, such as the right to engage in union organizing activity without fear of punishment by their employers. The NLRB argues that "... full and free exercise of NLRA rights depends on employees knowing those rights and that the Board protects those rights."
  • Employees must be made aware of their rights to file ULP charges with the NLRB and of the time deadlines that apply for filing charges.
  • It is appropriate to charge employers with a ULP if they fail to post because employee knowledge of their rights is essential to a full and free exercise of those rights and an employer's intentional refusal to post constitutes interference with employee rights.

The Judge has scheduled oral arguments for December 19, 2011. The other case which challenges the NLRB's right to require posting was filed by the United States Chamber of Commerce and others and is pending in the U.S. District Court for the District of South Carolina. Also, Senator Thune (R-S.D.) has introduced legislation that would block the NLRB's posting rule, but the Senate has not taken any action on that Bill.

We will continue to post future developments that may impact the NLRB's posting rule and the current January 31, 2012 effective date.
Tags: , , , , ,

NLRB Issues Final Rule Requiring All Employers to Post Notice About Union Organizing Rights

Posted on August 30, 2011 by Mike Underwood

On December 27, we wrote a blog post regarding the NLRB proposed rule-making to require all employers to post notices advising employees of their rights to engage in union organizing. After a period of public comment, during which about 7,000 responses were submitted to the NLRB, the NLRB has now issued its final rule requiring the posting.

Effective November 14, 2011, all private sector companies covered by the National Labor Relations Act are required to post in the workplace a specific notice advising employees of their rights under the National Labor Relations Act to engage in union organizing, to bargain through a union with their employers, and to refrain from those activities. The notice also gives examples of employer and union conduct which is considered illegal and tells employees of actions they can file with the NLRB to enforce their rights. Here is a link to the NLRB announcement, which includes a copy of the required posting (as an Appendix.)  The NLRB promises that by November 1st, the posting will be available for downloading from the NLRB web site and that hard copies will be available from NLRB Regional Offices. All employers will be required to post the notices in conspicuous areas of the workplace where other employment notices are posted. Also, employers that routinely post notices regarding personnel rules or policies on an Internet or intra-net site will be required to post the new NLRB notice on those sites. However, employers are not required to distribute the notice to employees by email or other technological means. In workplaces where at least 20% of the workforce are not proficient in the English language, translated copies must be posted. The NLRB has indicated they will make copies available in various languages.

There are various possible consequences if an employer fails to post the required notice. A failure to post could result in an extension of the normal six-month statute of limitations for filing an unfair labor practice charge. In other words, if an employer has failed to post the notice, the employer might lose the opportunity to have a charge dismissed based on the regular six-month time limit to file a charge. Second, if an employer fails to post the notice, the NLRB has indicated it might take that into consideration as evidence of an employer's motive against unionization. That could be a relevant fact in an unfair labor practice charge, such as if an employee were claiming that he or she had been fired because of union activity.

Employers should recognize the potential impact of this notice. At a minimum, the notice places the rights to union organizing very prominently in front of employees who perhaps have not thought of the issue on their own. The notice certainly increases the possibility for interest in union organizing and make employees aware of specific employer conduct that is illegal, increasing the possibility of unfair labor practice charges. Between now and the November 14 required posting date, employers should consider their overall measures for staying union-free. Are workplace policies, benefits, and management/supervisor behavior of the sort that employees are less likely to feel a need for union representation? Have supervisors been made aware of the critical role that they play in providing a workplace where employees will be less likely to feel a need for union representation? Are supervisors aware of the proper, legal way to respond if union organizing activity does happen? Now is an opportune time for companies to re-examine their commitment to these things and establish or continue best measures for union avoidance.
Tags: , , , ,