Court Decision On NLRB’s Employee Rights Posting Requirement
COURT ISSUES DECISION ON NLRB’s RULE REQUIRING POSTING OF NOTICE INFORMING EMPLOYEES OF THEIR RIGHTS
BY: William G. Trumpeter, Esq.
Miller& Martin PLLC
The court’s ruling in the National Association of Manufactures v. NLRB, Civil Case No. 11-1629(ABJ) (USDC DC March 2, 2012) challenging the NLRB’s Notice posting rule is in and it is a split decision. The bad news for employers is that the court has upheld the NLRB’s authority to issue a rule that requires employers to post the notice to employees informing them of their rights under the National Labor Relations Act. The good news is that the Court struck down the portions of the rule that provided the failure to post the notice would be deemed an unfair labor practice and would also constitute grounds for tolling the short six-month statute of limitations applicable to unfair labor practice charges under the Act.
What does this mean to employers? Failing to post the notice will not automatically be deemed an unfair labor practice, but failure to post can have adverse consequences. First, failure to post may be used as evidence of anti-union animus in cases in which animus is an element of the general Counsel’s burden of proof. Second, although the Board struck down the portion of the rule stating that the NLRB could infer that the failure to post was good cause to toll the statute of limitations, it left open the question of whether the failure to post could be used to justify an equitable tolling of the statute of limitations in a case in which the Board contended and proved that the employee bringing the charge was unaware of his or her rights under the Act. Third, Failure to post could be used by the Board as justification for overturning an election result in favor of an employer. Election interference need not rise to the level of an unfair labor practice to result in an election reversal.
As it stands now, the Notice must be posted on April 30, 2012. The teeth of the enforcement provisions of the rule, the creation of an unfair labor practice, have been filed down and the bite may not be as painful, but failing to post the notice may still have adverse consequences as outlined above.
The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations. As always, readers should consult a qualified attorney for specific legal guidance. Should you need assistance from a Miller & Martin attorney, please call 1-800-275-7303.