We have taken the weekend to review and digest the DC District Court ruling from Friday on the NLRB poster. Here is the official Shawe Rosenthal take (also delivered to you today via an e-lert). We strongly urge employers to contact us if you have additional questions about the ruling and/or whether you should post a counter-notice.
Court Validates NLRB Posting Requirement, But Strikes Down Automatic ULP Provision
On March 2, 2012, a federal District Court upheld a new NLRB rule that employers must post an official NLRB poster about the right to unionize, effective April 30, 2012. In the same ruling, however, the Court struck down the automatic ULP provision of the rule.
The Court’s Ruling: In National Association of Manufacturers v. NLRB, the Court held that the NLRB had authority to issue a rule requiring employers to post an official Notice of Rights poster. The Court ruled, however, that the NLRB lacked authority to “make a blanket advance determination that a failure to post will always constitute an unfair labor practice.” Instead, the Court acknowledged that the Board “may consider a knowing and willful refusal to comply with the [posting requirement] as evidence of unlawful motive in a case in which motive is the issue.” The Court also struck down a section of the rule that would have suspended the normal six month statute of limitations for an unfair labor practice charge if an employer failed to post the notice. The Court found no support in the National Labor Relations Act for suspending the statute of limitations.
Practical Impact of the Ruling: The Court’s ruling is likely to be appealed, perhaps by both sides. In the meantime, the posting rule will become nominally effective April 30, 2012, but will lack any enforcement mechanism unless an employer commits another, independent violation. Employers who post the NLRB notice may consider posting a “counter-notice” explaining to employees the employer’s position on unions and collective bargaining. We have developed examples of “counter-notices” which can be tailored to an employer’s individual needs.