Update: Court Upholds NLRB Adoption of Notice Posting Rule But Limits Sanctions
by Arthur T. Carter, A. John Harper III, Lindsay Murchison, Alex Stevens
Published: March, 2012
Submission: March, 2012
Haynes and Boone, LLP Press
On March 2, 2012, a federal district court in Washington, D.C. upheld the National Labor Relations Board’s authority to adopt a proposed regulation requiring employers to post a notice informing employees of their federal labor law rights. As we have discussed previously, the rule, which is slated to take effect on April 30, 2012, requires physical posting of an 11x17 notice, as well as publication on the employer’s intranet or Internet site if the employer customarily uses these sites to communicate with employees. While this ruling confirms that employers should continue to plan to post the required notice on April 30, the judge’s ruling also rejected two of the rule’s key enforcement provisions.
The court found that the following two portions of the rule regarding sanctions may not be enforced by the Board: (1) the provision that would treat any failure to post the required notice as an unfair labor practice; and (2) the provision tolling the National Labor Relations Act’s statute of limitations in any case where an employer failed to post the notice. Importantly, the court left open the Board’s ability to find, on a case-by-case basis, that an employer’s failure to post the notice is an unfair labor practice; the opinion only held that the Board cannot make an advance determination that a failure to post willalways constitute an unfair labor practice. In addition, the court denied the plaintiffs the opportunity to challenge the constitutionality of the President’s recent recess appointments in conjunction with the case, holding that the validity of the appointments has no relevance to the validity of the NLRB rule.
The plaintiffs, a group of trade associations, appealed the court’s decision to uphold the rule on March 5, asking the D.C. Circuit to overturn the ruling. The plaintiffs also asked the district court to enjoin the posting rule while the appeal goes forward. The U.S. Chamber of Commerce and the South Carolina Chamber of Commerce are also challenging the NLRB rule in a South Carolina federal district court. The South Carolina court held a February 6 hearing to consider motions for summary judgment but has not yet issued a ruling. For now, employers should continue to prepare to post the notice by April 30. We will continue to monitor this issue and address any notable developments in future alerts.
A copy of the proposed notice can be downloaded from the NLRB’s website and printed for posting.
If you have any questions regarding this alert, please contact one of the lawyers listed below or visit the Haynes and Boone Labor and Employment Practice page of our website.
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