What you need to know: Despite ongoing legal challenges to the National Labor Relations Board’s rule requiring employers to post notice of employees’ rights to unionize, that rule is still set to go into effect on April 30, 2012.
What you need to do: Employers should post copies of the notice by April 30, 2012.
On March 2, US District Court Judge Amy Jackson upheld the National Labor Relations Board’s employee rights notice-posting requirement. The court found that the NLRB did not exceed its statutory authority under the National Labor Relations Act when it adopted the rule. However, the court ruled that two of its provisions were invalid as a matter of law. First, Judge Jackson found the rule’s provision defining any failure to post as an unfair labor practice violated the NLRA. She explained that while the NLRB may find that an employer’s failure to comply is an unfair labor practice based on the particular facts and circumstances at issue, such a failure is not a per se unfair labor practice. Second, the court invalidated a provision that tolled the statute of limitations in unfair labor practice actions involving jobsites where employers failed to post the notice.
As reported in previous Client Alerts, the NLRB has postponed its posting requirement twice while legal challenges were being resolved. In the most recent legal challenge, the National Association of Manufacturers and others sought to delay the posting requirement for a third time while they appealed the case to the DC Circuit. Judge Jackson refused to postpone the deadline a third time, stating that the NLRB rule simply notifies employees of rights that they are already guaranteed under the NLRA. She explained that merely increasing employee awareness of their rights cannot constitute irreparable harm to employers.
The district court’s recent decision indicates that employers should still obtain a copy of the NLRB notice and, barring further legal developments, post the notice in the workplace no later than April 30. Employers that customarily post policies on an intranet or internet site must also electronically post the notice on such sites.