Two federal appellate courts have now affirmed lower court decisions to invalidate the “notice posting” rule of the National Labor Relations Board (“Board” or “NLRB”). If eventually allowed to take effect, this rule would require employers to post a notice of employee rights under federal labor law, including the rights to form, join, or assist labor unions.
While these rulings enable employers to continue to refrain from posting the Board’s notice, employers must remain vigilant of potential union organizing at their workplaces, as the publicity generated by the Board’s rule and its continuing plight through the courts is believed to have provided a rallying cry for organized labor. Steps that employers should consider taking now to protect themselves against union organizing are outlined below.
The Board’s rule, issued in August 2011, would require most private-sector employers to post a notice informing employees of their rights under the National Labor Relations Act (the “NLRA”). These rights largely involve bringing a labor union into the workplace to collectively bargain with and to pursue “grievances” against the employer.
The rule also provides that it would be an unfair labor practice for an employer to fail to post the notice and that this, in turn, would operate to “toll” (i.e., suspend) the six-month statute of limitations for employees to file unfair labor practice charges against the employer under the NLRA.
Soon after the Board issued the “notice posting” rule, trade organizations challenged it in federal district courts in the District of Columbia and South Carolina. The District of Columbia court struck down certain portions of the rule, while the South Carolina court invalidated it entirely. Both rulings were appealed, and the NLRB announced that it would delay implementation of the rule while the legal proceedings continued.
Appellate Courts’ Decisions
In May, the United States Court of Appeals for the District of Columbia Circuit struck down the rule in its entirety. The D.C. Circuit held that the rule violated Section 8(c) of the NLRA, which, in accordance with the First Amendment, prohibits the NLRB from penalizing an employer for non-coercive speech. Noting that free-speech rights encompass both a right to speak and a right not to speak, the D.C. Circuit held that by making a failure to post the notice an unfair labor practice, the rule impermissibly punished employers for “not speaking.”
The D.C. Circuit also found the tolling provision of the Board’s rule invalid. In this regard, this appellate court found no evidence that at the time the NLRA was enacted in 1935, Congress intended to allow the Board to alter the NLRA’s six-month statute of limitations for unfair labor practice charges.
In June, the United States Court of Appeals for the Fourth Circuit (the appeals court in the South Carolina case) also invalidated the rule, though on different grounds. The Fourth Circuit held that the NLRB lacked statutory authority to promulgate the rule, concluding that the Board’s powers under the NLRA are limited to addressing unfair labor practice charges and conducting union elections. The court noted that while Congress has given other agencies express statutory authority to promulgate notice requirements, it has never granted similar authority to the Board.
Consistent with these rulings, the NLRB has continued to state on its website that the notice posting rule “will not take effect until the legal issues are resolved,” adding that “[t]here is no new deadline for the posting requirement at this time.”
Recommendations For Employers
In light of these appellate court decisions, employers that were preparing to comply with the Board’s “notice posting” rule may continue to refrain from doing so. Eventually, the Supreme Court may be asked to resolve the issues raised by the rule, but the matter is presently not before it, leaving the fate of the rule on an uncertain path through the lower federal courts.
Meanwhile, employers should be aware of the likelihood of increased union organizing activity. Whether or not this rule ever goes into effect, the publicity surrounding it will almost certainly spur further organizing efforts among employees. Additionally, the Board remains on a pro-union course and is expected to continue in this direction for at least the remainder of President Obama’s term.
Thus, we recommend that employers desiring to remain union-free take the following steps before union-organizing activity has begun:
- Adopt and enforce valid policies that limit when employees may solicit and distribute literature in the workplace, and that prevent unauthorized visitors from gaining access to employers’ facilities. Because such policies are governed by complex legal standards, they should always be reviewed by labor counsel;
- Be sensitive to issues that are of concern to employees (such as management issues and employee compensation and benefit matters) and attempt to remedy legitimate complaints. A proactive approach to such matters can help to dissuade employees from believing that they need a union in order to have a voice in the workplace;
- Train supervisors, managers, and human resources personnel in how to recognize and respond appropriately to possible union organizing activity; and
- Develop a plan for systematically communicating the employer’s position on unionization and related issues, both internally and externally.
Please feel free to contact us if you have any questions about the status or requirements of the Board’s “notice posting” rule or any other labor-law issue.