In a political environment mired in controversy, the National Labor Relations Board (NLRB) is one of the federal agencies receiving more than the usual dose of criticism. Much of this criticism stems from several of the NLRB’s recent pro-union decisions. In some instances, members of Congress have joined the business community to express outrage over the degree to which the NLRB appears to have acted beyond the scope of its authority. Multiple lawsuits already have been filed concerning one of these decisions, and it is expected that more lawsuits will follow.
One of the decisions sparking controversy is the Aug. 30, 2011 final rule issued by the NLRB that alters employers’ posting requirements. The new rule requires employers to post notices regarding employees’ bargaining rights, regardless of whether any employees are represented by a union. An employer’s failure to post the notice could be deemed an unfair labor practice which could have the effect of tolling the applicable statute of limitations for the filing of other unfair labor practice charges. Moreover, an employer’s “knowing” or “willful” failure to post the notice could be considered evidence of an unlawful motive if unfair labor practice charges are filed regarding other alleged violations of the National Labor Relations Act (NLRA).