Recently, I notified you that the National Labor Relations Board had issued a Rule requiring all Employers to post a Notice of Employee Rights under the National Labor Relations Act. The Rule is scheduled to go in effect next month, when all Employers are required to post a Notice, in a similar manner in which other Labor Law Compliance Notices are posted. If you have not yet made arrangements to bring your workplace into compliance, be sure to contact us soon.
More recently, however, the United States District Court for the District of Columbia has determined that a portion of the NLRB’s new Rule is invalid. Various plaintiffs brought actions against the NLRB, alleging that the Board exceeded its authority when adopting the Rule and that it violated the First Amendment rights of those plaintiffs by requiring them to post the poster and communicate messages to which they objected. The Court rejected the First Amendment argument, concluding that the contents of the poster constituted government speech, since the posters provided a message from the government rather than one that should be construed as coming directly from the Employer. Also, the Court concluded that the NLRB did not exceed its statutory authority in requiring Employers to hang such a poster.
More importantly, though, the Court did invalidate two other provisions in the Rule, concluding that the NLRB did exceed its authority with respect to those provisions. The Rule as adopted not only required Employers to hang the poster, but it also declared it to be an unfair labor practice if an Employer failed to do so. In addition, the Rule declared that the statute of limitations would be tolled (i.e. the clock would not start running) during the time that the poster was not hung.
In short, the Court found that the NLRB did not have the power to impose these kinds of penalties with respect to Employers who do not comply with the posting Rule. Certainly, it is not suggested that any Employer not comply with the posting Rule, but it is important to recognize that at least the United States District Court for the District of Columbia has concluded that an Employer will not be penalized so severely for even an inadvertent failure to comply with the Rule.
If you have any questions about the NLRB posting requirement, do not hesitate to contact our office.
Pursuant to a Rule from the National Labor Relations Board, most private sector employers are required to post notice of employee rights under the National Labor Relations Act. This Act is what gives many private sector employees the right to form and join, or refrain from joining, labor unions.
The new rule requires that a poster be hung in locations similar to where other such notices (under the FMLA, FLSA, etc.) may be posted. The Rule now goes into effect April 30, 2012, after the original effective date was postponed by the NLRB.
To get a free copy of the poster, you can download one from the NLRB website, or you can contact the NLRB to have one mailed to you.
Last week, I commented that President Obama’s recent appointments to the National Labor Relations Board could mean significant changes for employers, particularly as it relates to union organizing by employees. As one particular example, I referred to new election guidelines that have been proposed but that have not been enacted yet. These new rules would make organizing campaigns faster and would make it easier for unions to launch and prevail in organizing campaigns.
Today, I will highlight the first of several notable rule changes, to explain why I say that. Let’s look first at the proposal to require pre-election hearing position statements.
It has been no secret that President Obama has enjoyed great support from organized labor and that he in turn supports efforts to make it easier for unions to organize workers. Recent appointments by Obama to fill three vacancies on the National Labor Relations Board are likely to usher in significant changes in the process for creating such workplace groups.
The President, with much fanfare Wednesday, made a “recess” appointment for the head of the new Consumer Financial Protection Bureau. (I put the term “recess” in quotes, because there appears to be some controversy about whether or not the Senate, which normally must approve of such appointments, was actually in recess). With much less fanfare, though, Obama appointed three new members to the five-seat NLRB. The Board had two vacancies already, and a third vacancy was created when one member’s term expired at the end of 2011. With only two members on the 5-member board, no action could be taken.
Republicans in Congress seemed content that this Board could not act, but the appointment of three new members makes it not only possible that the Board will be able to act but also likely that it now will have enough votes to enact new union election rules that have been proposed, to union elections faster and easier for unions.
I will continue to monitor the status of those rules, which I will explain in more detail in a future post. Stay tuned, folks!