Locke Lord QuickStudy: Court Orders Halt to NLRB Posting Rule

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    Court Orders Halt to NLRB Posting Rule

    On August 25, 2011, the National Labor Relations Board (“NLRB”) announced it was implementing a new rule requiring almost all private employers to post a notice about employee rights under the National Labor Relations Act, including the right to organize and be represented by a union. The rule required employers to post this notice where other employee notices are posted, and this would include electronic posting if other such notices are so posted. If more than 20 percent of the employer’s workforce at a location speak a language other than English, posters in that language must also be posted.

    The rule further provided that failure to comply with the posting deadline (originally November 14, 2011) would be an unfair labor practice under the Act. Also, if an employer failed to comply, the six-month limitations period for employees to file an unfair labor practice charge would be tolled.

    Subsequently, several lawsuits challenging the rule were filed, which resulted in the posting deadline being extended twice. Most recently, the posting deadline was April 30, 2012. On March 2, 2012, the United States District Court for the District of Columbia issued a lengthy ruling on the legal challenges filed by the National Association of Manufacturers (“NAM”) and the National Right to Work Legal Defense and Education Fund (“NRTW”). The Court upheld the right of the NLRB to develop a poster and to require that employers post it. The Court agreed with the NAM and NRTW, holding that the National Labor Relations Act is violated by: 1) the provision in the NLRB rule that deems a failure to post the notice to automatically be an unfair labor practice; and 2) the provision that tolls the statute of limitations in unfair labor practice actions against employers who have failed to post. The Court therefore held those penalties to be invalid. Almost immediately following the ruling, the NAM and NRTW announced their intent to appeal the District Court’s decision.

    On April 13, 2012, the District Court for the District of South Carolina issued a decision in a legal challenge filed by the Chamber of Commerce of the United States and the South Carolina Chamber of Commerce. This decision went much further than the decision issued by the Court in D.C. In the South Carolina decision, Judge David Norton granted summary judgment to the Chambers of Commerce on all issues. According to Judge Norton, the NLRB’s rule requiring a poster is unlawful.

    On April 17, the Court of Appeals for the District of Columbia granted the NAM’s request for an injunction against implementation of the NLRB posting rule. Although the Court ordered an expedited “briefing” schedule, oral argument will not occur until September 2012 at the earliest. No one should be surprised if a decision is not released until after the Presidential election this November.

    For employers who are interested in seeing what the proposed NLRB poster says, you can obtain it from the NLRB website at www.nlrb.gov/poster. At this time, however, there is no obligation to post the notice.

    For more information on the matters discussed in this Locke Lord QuickStudy, please contact one of Locke Lord’s Labor & Employment Practice attorneys or the author listed below. 

    Steven H. Adelman | T: 312-443-0405 | sadelman@lockelord.com

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