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Labor: Federal court partially invalidates NLRB posting requirement

While the ruling weakens its hold, employees are still required to post the notice

In a March 2 ruling, Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia partially overturned a National Labor Relations Board (NLRB) regulation requiring employers to post notices of employee rights under the National Labor Relations Act (NLRA). The decision upholds the right of the NLRB to promulgate a rule requiring such posting by employers. With respect to enforcement, however, the court invalidated two provisions of the rule, which:

  1. Deem a failure to post to be an unfair labor practice
  2. Toll the statute of limitations in unfair labor practice actions against employers who have failed to post

The NLRB rule, “Notification of Employee Rights under the National Labor Relations Act,” contains three Subparts:

  1. Subpart A contains definitions and notice posting provisions
  2. Subpart B contains enforcement provisions
  3. Subpart C contains ancillary provisions

While upholding the notice posting provisions, the court determined that the NLRB exceeded its authority with respect to two provisions in Subpart B.

The first invalidated provision, Section 104.210, reads, in relevant part: “Failure to post the employee notice may be found to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by NLRA Section 7, 29 U.S.C. 147, in violation of NLRA Section 8(a)(1), 29 U.S.C. 158(a)(1).” The court determined that this provision is invalid to the extent that it “allows the Board to deem the failure to post to be an unfair labor practice in every situation.”

The court distinguished between “a situation where an employer’s failure to post was intended to or did exert influence over an employee’s organizational efforts, and where the employer merely declined or failed to post the information publicizing those rights.” According to the court, for a failure to post to be considered an unfair labor practice, there must be some finding of an act of obstruction rather than a mere unwillingness to help.

The court cautioned that nothing in its decision “prevents the Board from finding that a failure to post constitutes an unfair labor practice in any individual case brought before it.” The Board, however, must make specific findings based on the facts and circumstances of each individual case.

The second invalidated provision—Section 104.214(a)—reads, in relevant part: “When an employee files an unfair labor practice charge, the Board may find it appropriate to excuse the employee from the requirement that charges be filed within six months after the occurrence of the allegedly unlawful conduct if the employer has failed to post the required employee notice unless the employee has received actual or constructive notice that the conduct complained of is unlawful.”

In invalidating this provision, the court found that it was designed to apply to all unfair labor practice actions against an employer that failed to post, not just those arising out of the failure to post. In discussing situations in which statutes of limitation are sometimes flexibly applied, the court noted that the rule “strips away the case-specific nature of the equitable tolling doctrine by imposing it as the rule rather than the exception.” The court concluded that the NLRA does not provide authority to the NLRB to enact such a blanket rule.

Despite invalidating these provisions, the notice posting provisions in Subpart A remain intact. Subpart A requires covered employers—with or without union-represented employees—to post an 11 x 17 notice in a conspicuous place at the workplace and to publish a link to the notice on an internal or external website if other personnel policies or workplace notices are maintained in such a manner. The notice contains information about the rights afforded to employees under the NLRA, in addition to information about how to contact the NLRB and file a complaint. It is available in hard copy at NLRB regional offices and on the NLRB website.

On March 6, the plaintiffs filed an expedited appeal of the decision. Employers are therefore encouraged to follow this development closely and, in the meantime, prepare to comply with the NLRB’s rule, which becomes effective April 30.

Contributing Author

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John Kuenstler

John F. Kuenstler is a partner in the Chicago office of Barnes & Thornburg LLP and a member of the Labor and Employment Department. Mr....

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