District Court Partially Upholds/Blocks NLRB Notice-Posting Rule
Today the U.S. District Court for the District of Columbia issued its opinion addressing the validity of the National Labor Relations Board's new rule requiring private-sector employers subject to the National Labor Relations Act to post a notice to employees informing them of their rights under the Act. In ruling on the parties' cross motions for summary judgment, the court held that the NLRB:
- properly issued a rule requiring private-sector employers to post notices informing employees of their rights under the Act;
- cannot issue a rule automatically deeming an employer's failure to post the notice an unfair labor practice in violation of Section 8(a)(1) of the Act;
- cannot equitably toll the statute of limitations in unfair labor practice actions against employers who have failed to post; and
- can consider an employer's "knowing and willful" failure to post the notice as evidence of unlawful motive.
The last point is significant because it provides the NLRB with a powerful tool to find a violation in cases where the alleged unfair labor practice requires an unlawful motive.
In analyzing the the validity of the NLRB's rule, the court examined its two sub parts separately. Subpart A requires all employers subject to the NLRA to "post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures." In upholding Subpart A, the court noted that Section 156 of the NLRA "expressly grants the Board the broad rulemaking authority to make rules necessary to carry out any of the provisions of the Act."
Therefore, the Court cannot find that in enacting the NLRA, Congress unambiguously intended to preclude the Board from promulgating a rule that requires employers to post a notice informing employees of their rights under the Act. Neither the text of the statute nor any binding precedent supports plaintiffs' narrow reading of a broad, express grant of rulemaking authority.
Subpart B lays out the method by which the NLRB will enforce the notice posting provisions of the rule. Subpart B provides that an employer's failure to post the employee notice "may be found to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by [the Act] in violation of NLRA Section 8(a)(1)...." Subpart B also provides that the Board may find it appropriate to toll the statutory six month statute of limitations for an employee who files an unfair labor practice charge if the employer has failed to post the notice, and that the Board may consider an employer's "knowing and willful refusal to comply with the requirement to post the employee notice as evidence of unlawful motive in a case in which motive is an issue."
The plaintiffs argued, and the court agreed, that the NLRB lacked the authority to deem a failure to post to be an unfair labor practice under the Act. The NLRB claimed that an employer's failure to post the notice qualifies as an unfair labor practice charge under Section 8(a)(1), asserting that because "notice posting is necessary to ensure effective exercise of Section 7 rights, a refusal to post the required notice is at least an interference with employees' exercise of those rights." The court disagreed:
section 158(a)(1) prohibits employers from getting in the way - from doing something that impeded or hampers an employee's exercise of the rights guaranteed by section 157 of the statute. It does not prohibit a mere failure to facilitate the exercise of those rights. Yet, section 104.210 does not distinguish between a situation where an employer's failure to post was intended to or did exert influence over an employee's organizational efforts, and where the employer merely declined or failed to post the information publicizing those rights. It allows the Board to deem the failure to post to be an unfair labor practice in every situation.
Notably, however, the court stated that nothing in its decision prevents the Board from finding that a failure to post constitutes an unfair labor practice in any individual case brought before it.
But the ruling does mean that the Board must make a specific finding based on the facts and circumstances in the individual case before it that the failure to post interfered with the employee's exercise of his or her rights.
The court rejected the rule's equitable tolling provision because "Congress did not leave a gap for the agency to fill with respect to the statute of limitations."
Finally, the court did uphold the portion of Subpart B providing that the Board may consider failure to post as evidence of an employer's unlawful motive because the NLRB had authority to issue the rule and the rule "does not make a blanket finding that will govern future individual adjudications or create a presumption of anti-union animus wherever an employer fails to post the provision.
It is unknown at this time if either side will appeal the court's ruling, so employers should continue to follow developments regarding the rule. Currently, private sector employers are required to post the required notice in the workplace by April 30, 2012. We will update the blog once any new information becomes available.
