Contributed by Jeff Risch
Despite an aggressive and well coordinated legal challenge on behalf of the employer community, private employers subject to the National Labor Relations Act (NLRA) — which is just about every private employer – will soon be required to post written notice to its employees about their rights to organize and form labor unions. A federal district court judge in Washington, D.C. ruled on March 2, 2012 that the National Labor Relations Board (“Board”) has the authority to promulgate and enforce a rule requiring most private employers to display the new poster entitled “Employee Rights Under the National Labor Relations Act” National Association of Manufacturers v. NLRB.
The rationale behind the bold maneuver by the Board centers on its belief that employees are simply unaware of their rights under federal labor law and employers should be required to inform them. The Board created its own rule on the subject under its statutory authority to adopt “such rules and regulations as may be necessary to carry out the provisions of [the NLRA].”
Fortunately for employers, the Board’s attempt to sanction employers who fail or refuse to post the required posting notice was declared unlawful by the federal district court. The Board attempted to harm employers who failed to display the poster by way of: (1) finding the failure to post the required notice to be an unfair labor practice (i.e. holding that such conduct would be deemed unlawful interference with, restraint, or coercion of employees in the exercise of their rights under the law); and (2) tolling the standard 6-month statute of limitations for filing unfair labor practice charges against employers that fail to post the notice.
However, the district court did not rule out the possibility that failure to post could be considered and used as evidence of an unfair labor practice: “[N]othing in this decision prevents the Board from finding that a failure to post constitutes an unfair labor practice in any individual case brought before it. But the ruling does mean that the Board must make a specific finding based on the facts and circumstances in the individual case before it that the failure to post interfered with the employee’s exercise of his or her rights.”
While other legal challenges still exist and are pending, this recent decision reminds employers to be ready to post come April 30, 2012.