Insights for the Labor Relations Professional


Federal Court Finds NLRB Posting Requirement Lawful, But Some Remedies Invalid

By Nelson Cary

As readers of this blog know, the NLRB’s notice posting requirement has been the subject of several legal challenges.  Last Friday, the U.S. District Court for the District of Columbia was the first to consider whether the NLRB’s requirement that employers post the notice exceeded its authority under the NLRA.  The result for employers is mixed. Judge Amy Berman Jackson held that:

1.      The requirement to post the notice is a lawful exercise of the NLRB’s discretion.  Thus, the NLRB may by rule require that employers post the notice the NLRB has prepared.

2.      The NLRB cannot, however, automatically deem an employer’s failure to post the notice an unfair labor practice in violation of Section 8(a)(1) of the Act.

3.       In addition, the NLRB cannot toll the statute of limitations in unfair labor practice actions against employers who have failed to post.

4.       But, the NLRB can consider an employer’s “knowing and willful” failure to post the notice as evidence of unlawful motive in an unfair labor practice proceeding involving some other alleged violation of the NLRA (e.g., an alleged discriminatory discharge of a union supporter).

In analyzing the validity of the NLRB’s notice posting rule, Judge Jackson noted that Section 156 of the NLRA “expressly grants the Board the broad rulemaking authority to make rules necessary to carry out any of the provisions of the Act.”  However, the court agreed with the Plaintiffs in the case in ruling that the NLRB lacked the authority to deem a failure to post to be an unfair labor practice under the NLRA. Judge Jackson noted that while Section 158(a)(1) of the NLRA prohibits employers from impeding or hampering an employee’s exercise of their rights, it does not prohibit a mere failure to facilitate the exercise of those rights. Accordingly, the failure to post the notice could not itself constitute an unfair labor practice.

In striking down the tolling portion of the rule, the court noted that the NLRA establishes an unambiguous six-month statute of limitations.  In adopting the tolling rule, the NLRB adopted an exception that “substantially amends the statute of limitations that Congress expressly set out in the statute.” The regulation, therefore, exceeded the NLRB’s authority.

In addition to her ruling on the posting, Judge Jackson declined an invitation to rule on the validity of President Obama’s recess appointments, an issue that Plaintiffs raised after filing their lawsuit.

The Plaintiffs in the case (National Association of Manufacturers and Coalition for a Democratic Workplace) filed their Notice of Appeal with the court today.  A second federal lawsuit challenging the notice posting rule is pending in South Carolina.  The court has yet to rule in that case.

The court has not ordered any delay in the notice posting requirement pending appeal, nor has the NLRB announced another voluntary delay in the rule to facilitate an appeal.  Assuming this remains the case, all private sector employers subject to the NLRA will be required to post the required notice in the workplace by April 30, 2012.  The notice can be found on the NLRB website.

Tags: Berman

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