Federal Court OK's NLRB Notice Posting Requirement

            In our September 15, 2011 issue of Compliance Matters, we wrote about the court actions filed by business groups to block implementation of the NLRB's controversial notice posting rule.

            On March 2, 2012, a federal judge in Washington D.C. upheld the notice posting rule. In doing so, the judge also invalidated another controversial part of the Rule that would have made it an unfair labor practice for an employer to fail to post the Notice and would have extended the National Labor Relations Act's 6-month statute of limitations in such cases. Insiders say that the decision is likely to be appealed.

            The judge's decision came in consolidated lawsuits by the National Association of Manufacturers (NAM) and the National Right to Work Legal Defense and Education Foundation (NRTW). The U.S. Chamber of Commerce's separate lawsuit challenging the rule remains pending before a South Carolina district court.  

            However, the judge was clear that her ruling "would not prevent the Board from making an individualized determination" that an employer's willful refusal to post the Notice constituted an unfair labor practice. In a press release, NLRB Chairman Mark Gaston Pearce stated he was pleased that the court had "recognized [the NLRB] can find, on a case-by-case basis, that an employer's failure to post the notice is an unfair labor practice." 

            The judge also found that the Board lacked authority to declare that it would, as a "standard practice" rather than on a case-by-case basis, extend the 6-month period for employees to file an unfair labor practice charge. While the judge acknowledged the Board's "unquestionable right" to extend the 6-month period in appropriate cases, she found that a policy of extending this period would effectively and impermissibly amend the 6-month period that Congress had set.  

            While both the NAM/NRTW and the Board are likely to appeal the judge's decision, that appeal will not automatically delay the April 30, 2012 effective date of the notice-posting requirement. The Court of Appeals may elect to block the Board from implementing the notice-posting requirement while it considers the appeal, or the Board may voluntarily postpone its effective date, as it did twice while the case was pending. However, NLRB Chairman Pearce's press release expressed satisfaction that the judge issued her ruling with "plenty of time for employers to comply before the rule takes effect on April 30, 2012," suggesting that the Board is not inclined to postpone the effective date again.

            We will closely monitor developments in this case and the other pending case in South Carolina by the Chamber of Commerce. If the rule is not postponed pending the outcome of the appeal, then employers will have to begin compliance effective April 30th.

            If you have any questions about the posting requirement, or wish other information about the company's rights and obligations when it comes to union organizing, please contact Ken Ballard, Rich Rosenberg, Matt Wakefield or any of the other lawyers in the firm.

Sincerely,

Richard S. Rosenberg

Partner

BRG&S, LLP