E-Alerts

Court Enjoins The NLRB’s New Workplace Poster Requirement Pending Appeal

[April 18, 2012]  The United States Court of Appeals for the District of Columbia Circuit has enjoined the National Labor Relations Board (“Board” or “NLRB”) from enforcing the regulation that would require employers to post a prescribed notice in workplaces informing employees of their rights under the National Labor Relations Act (“NLRA”).  This injunction is temporary, preserving the status quo “pending appeal” while the Court resolves whether the NLRB has the right to require employers to post this notice.

As the NLRB announced yesterday on its website, the NLRB’s rule requiring the posting “had been scheduled to take effect on April 30, 2012.”  Thus, employers who were preparing to post these notices can hold off, for now.  The NLRB has stated that, “Regional offices will not implement the rule pending the resolution of the issues before the court.”

The two lawsuits challenging the Board’s authority to adopt this requirement are still proceeding through the courts.

• In March, a federal judge in Washington, D.C., held that the Board had acted within its authority in instituting the notice requirement, but also invalidated parts of the NLRB’s new regulation.  The court ruled against the NLRB, finding that the Board did not have the authority to treat a failure to post the notice as an unfair labor practice, and that the NLRB could not treat the statute of limitations as being tolled by the failure to post the required notice.  Nonetheless, the plaintiffs challenging the rule appealed the court’s ruling otherwise upholding the NLRB’s authority to require employers to post this new notice, and the plaintiffs sought a temporary injunction pending appeal.  The Court of Appeals granted that temporary injunction, as noted above.

• In April, the South Carolina District Court found more broadly that the NLRB did not have the authority to institute the notice requirement.

The plaintiffs appealed part of the ruling by the D.C. court, and the NLRB has said it will appeal the aspects of the D.C. court’s decision that ruled against the NLRB.  The Board has also stated that it will appeal the South Carolina decision.

There is no word, yet, on how long those appeals might take to resolve, and/or whether this issue is likely to end up at the United States Supreme Court.

In the meantime, employers are advised to take seriously the likelihood of increased union organizing activity.  As we have detailed in previous E-Alerts:

• The Board’s prescribed poster informs employees about their basic rights under the NLRA, and provides examples of actions that employers are prohibited from taking in response to union organizing activities.  (Thus, the education of non-union workers has already begun.)

• Under the new regulation, employers would be required to physically post the prescribed 11×17-inch poster (which can be downloaded, in multiple languages, without cost, from the NLRB’s website, at http://www.nlrb.gov/poster) where other required workplace notices are normally displayed.  (Again, all non-union workers currently have access to new poster, in numerous different languages.)

• The posting requirement – and all of the publicity surrounding this issue – will likely spur increased union-organizing efforts by employees.  Thus, we strongly recommend that employers desiring to remain union-free take a number of other steps before union-organizing activity has begun.  Those steps are outlined in our prior E-Alert.

For more information about the poster, the posting requirements, and recommendations for employers to prepare for posting the prescribed notice, please feel free to contact us, and/or please see our prior E-Alert.

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If you have any questions about the NLRB’s poster regulation, or if you would like our assistance with any other labor-law matters, please do not hesitate to contact us.