Private employers have won two key victories in the long-running regulatory battle to force them to post notices about employees’ rights to join a union.
Although a new court ruling upholds the National Labor Relations Board’s right to establish the rule, the court rejected the NLRB’s pre-determined harsh penalties for noncompliance.
‘Conspicuous’ Posting Required
The NLRB’s Notification of Employee Rights, issued Aug. 30, requires all employers subject to the National Labor Relations Act to display a poster advising workers of their rights to organize.
The 11-by-17-inch notice must be displayed in “conspicuous places, including all places where notices to employees are customarily posted,” according to the rule. Failure to post the notice adequately would be considered an unfair labor practice.
The 194-page rule was to have taken effect Nov. 14, but the National Association of Manufacturers filed suit Sept. 8 in U.S. District Court in Washington, challenging the rule’s legality. Other business groups, including the U.S. Chamber of Congress, later joined the NAM suit or filed their own.
NAM’s suit alleged that the NLRA does not “contain any provisions expressly granting the Board the authority to promulgate and issue a specific rule requiring employers to post a notification of employee rights under the NLRA.” The suit also contended that the rule violated employees’ First Amendment rights.
The rule has three main components:
• A requirement to post a physical notice containing language drafted by the NLRB;
• A provision creating a new unfair labor practice for failing to post the notice; and
• A provision allowing the NLRB to extend the six-month statute of limitations if an employer failed to post the notice.
The notice states that employees have the right to act together to improve wages and working conditions; to form, join and assist a union; to bargain collectively with their employer; to strike or picket, under certain circumstances; and, last of all, to not participate in any of these activities.
NLRB says that many employees are unaware of their rights under the National Labor Relations Act “and that the rule will increase knowledge of the NLRA among employees, in order to better enable the exercise of rights under the statute.”
New Court Ruling
On March 2, the U.S. District Court for the District of Columbia upheld part of the rule while striking down others as unlawful.
The federal court upheld the posting requirement but struck down the blanket enforcement mechanisms. The court said the NLRB could not “make a blanket advance determination that a failure to post will always constitute an unfair labor practice.”
However, employers still face individually determined consequences for non-compliance. So the NLRB may still make an individual determination that failure to post the notice was unlawful in a specific case (if, for example, an employer refuses to post the notice when faced with a union organizing drive).
The court also rejected a provision of the rule that would toll (suspend) the statute of limitations in unfair labor practice actions against employers who have failed to display the posters.
Currently, the rule is set to take effect April 30, but further appeals—on both sides of the issue—are likely.