Today, a federal district court for the District of Columbia issued a decision in a lawsuit brought by the National Association of Manufacturers (NAM) challenging the new NLRA posting requirement. The court upheld the posting requirement, but struck down some of the enforcement provisions relating to the new rule.

As previously reported, the National Labor Relations Board (NLRB) decided to require most private-sector employers to post a new notice entitled "Employee Rights Under the National Labor Relations Act." NAM challenged the posting requirement on multiple legal grounds, including arguments that the posting requirement exceeded the NLRB’s authority under the NLRA and that the requirement violated employers’ First Amendment free speech rights.

In the first decision on this issue, the federal court issued a split decision upholding part of the new rule, while overturning other provisions. The court ruled that: 

• The notice posting requirement is legally valid: The NLRB “lawfully promulgated” its rule requiring employers to post a notice of employee rights. The court did not find that Congress intended to preclude the NLRB from promulgating a rule that requires employers to post a notice informing employees of their rights under the NLRA. Moreover, the workplace notice does not violate employers’ free speech rights.

• Two enforcement provisions of the new rule are “invalid as a matter of law”: (1) The provision that states that a failure to post the notice is an unfair labor practice; and (2) the provision that tolls the statute of limitations in unfair labor practice actions against employers who failed to post the notice.

The court ruled that failure to post the notice is not by itself an act of interference or obstruction by the employer and, thus, is not alone an unfair labor practice violation. However, the court did not rule out the possibility that failure to post could be considered and used as evidence of an unfair labor practice:

“[N]othing in this 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. ”

It is likely that this federal district court decision will be appealed. Moreover, there remains a pending legal challenge brought by the U.S. Chamber of Commerce in a federal district court in South Carolina.  That case was heard on February 6, 2012, and a decision is expected shortly.

What does this all mean? The requirement to post the new employee rights notice is still valid. The decision has not halted the current implementation status. As of right now, the current required posting date is April 30, 2012. Though this decision knocked some teeth out of the NLRB’s enforcement mechanism, failure to post can still be evidence in an unfair labor practice charge.

Employers need to stay tuned for further information as these legal challenges continue to wind their way through the courts. 

Author: Gail Cecchettini Whaley

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