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Behind the NLRB posting rule

A rule that would have forced most U.S. employers to post a notice of employees' rights under the National Labor Relations Act (NLRA) has been temporarily blocked by a federal circuit court.

The U.S. Circuit Court of Appeals for the District of Columbia on April 17 granted an emergency injunction pending the appeal of a prior D.C. district court ruling that the National Labor Relations Board (NLRB) had authority to issue the poster requirement, but had no ability to punish an employer for failure to comply.

Oral argument before the appeals court is slated for September 2012.

In a separate April 13 decision in another legal challenge to the rule, a U.S. district court in South Carolina ruled that the NLRB lacked the authority to issue a notice-posting rule.

The cases stem from the NLRB’s Dec. 22, 2010, notice of proposed rulemaking requiring employers subject to the NLRA to display posters in their workplaces informing employees of their Section 7 rights under the act. The board estimated that nearly 6 million small businesses would be affected but determined that the compliance costs would be minimal. The poster text is available for free on the NLRB’s web site.

On Aug. 30, 2011, following analysis of 7,000 public comments, the board issued a final rule, which was originally set to take effect Nov. 14, 2011. It later postponed the effective date to Jan. 31, 2012, and again to April 30, 2012.

The poster notifies employees of their Section 7 rights to form, join or assist a union; to negotiate with an employer through a union; to bargain collectively through representatives of employees’ choosing; to discuss wages, benefits and other terms and conditions of employment with co-workers or a union; to take action to improve working conditions; to strike and picket; and to choose not to do any of these activities, including joining and remaining a member of a unit.

The proposed rule provided that an employer’s failure to post the notice might be found to interfere with employees in the exercise of their National Labor Relations Act rights.

The district court in South Carolina court agreed with the plaintiff, the U.S. Chamber of Commerce, that the final rule violates the Administrative Procedure Act because the board lacks the authority to issue the rule under Section 6 of the act or the gap left by the absence of a notice-posting provision in the act.

“Interpretation of Section 6 is terra incognita,” the South Carolina district court noted. “Courts have rarely explored the parameters of Section 6, the reason being that the board has rarely exercised its rulemaking authority.”

Congress authorized the board to regulate employers’ conduct in preventing and resolving unfair labor practice charges and conducting representation elections, the court noted. “It is clear from the structure of the act that Congress intended the board’s authority over employers to be triggered by an outside party’s filing of a representation petition or unfair labor practice charge,” it stated. “The notice-posting rule proactively dictates employer conduct prior to the filing of any petition or charge, and such a rule is inconsistent with the board’s reactive role under the act.”

The court noted that Congress often has inserted notice requirements in labor laws since 1934, but the National Labor Relations Act was silent about notice.

NLRB Chairman Mark Gaston Pearce said of the recent decisions; “We continue to believe that requiring employers to post this notice is well within the Board’s authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law.”

But Randel Johnson, senior vice president with the U.S. Chamber of Commerce, called the proposed poster “lopsided” because it “did not include balanced information such as employees’ rights to decertify unwanted unions, or to refuse to pay union dues used for political purposes, nor did the posting provide information about employees’ rights in ‘right to work’ states—like South Carolina.”

David Barron in the Houston office of Cozen O’Connor said that “although most of the ‘rights’ listed in the poster are well established, there are some that are controversial. For example, the poster states that it is against the law for an employer to prohibit employees from wearing union hats, buttons, t-shirts and pins in the workplace ‘except under special circumstances.’ This is a hotly contested area of the law as employers often argue that such items violate company dress codes, create safety or sanitation concerns (e.g., for food handlers), or otherwise should be limited in the workplace. The poster could encourage more conflict in this area as employees may incorrectly interpret the poster as allowing them to wear pro-union paraphernalia in the workplace without limitation.”

Jonathan Segal, an attorney with Duane Morris in Philadelphia, noted that the District of Columbia district court decided that the board did not exceed its statutory authority in requiring the posting of a union rights notice, so the district courts are in conflict. He said the issue eventually might go to the Supreme Court.

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Allen Smith, J.D., is manager, workplace law content, for SHRM.


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