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April 10, 2012

In case you haven’t heard, the new required NLRB poster has been placed on hold again. f you have already posted the separate 11×17 NLRA Employee Rights poster which was supposed to have been posted by April 30, you should remove it at this time and put it to the side for the time being.

The reason for the latest hold is that on April 17th, the U.S. Court of Appeals for the District of Columbia Circuit stopped the National Labor Relations Board (NLRB) from enforcing a regulation that would have required most private sector employers in the United States to post a notice of employee labor law rights beginning April 30 (Nat’l Ass’n of Mfrs. v. NLRB, D.C. Cir., No. 12-5068, injunction pending appeal 4/17/12).

In response to the action, NLRB announced its regional offices will not implement the disputed rule, but the agency will defend the rule in the D.C. Circuit and plans to appeal an adverse ruling that was issued April 13 by a federal court in South Carolina.

The notice-posting rule would apply to any employer covered by the National Labor Relations Act, excluding states or political subdivisions not subject to board jurisdiction. The NLRB has estimated that the “great majority” of 6 million small businesses in the United States would be required to comply with the regulation by posting a notice of NLRA rights. The regulation also requires employers that customarily communicate with employees on internet or intranet sites to post the NLRB notice electronically.

The rule was suggested to the board in a 1993 petition for rulemaking by Charles J. Morris, now professor emeritus of Southern Methodist University’s Dedman School of Law. A divided NLRB proposed the regulation in December 2010 (244 DLR AA-1, 12/21/10) and published a final rule in August 2011 (76 Fed. Reg. 54,006; 165 DLR AA-1, 8/25/11).

NLRB’s final rule provides that an employer that fails or refuses to post the required notice would violate Section 8(a)(1) of the act, which proscribes employer action “to interfere with, restrain or coerce employees” in their exercise of rights guaranteed by the NLRA.

The final rule also provides that although Section 10(b) of the NLRA, generally precludes the issuance of an unfair labor practice complaint based on conduct occurring more than six months before the filing and service of an administrative charge with the agency, “the Board may find it appropriate” when an individual employee files a charge against an employer “to excuse the employee from the requirement that charges be filed within six months after the occurrence of the allegedly unlawful conduct.”

Tolling the statute of limitations would be appropriate “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,” the rule provides.

The rule originally was set by NLRB to become effective in November 2011. The agency postponed the effective date to Jan. 31, 2012, and then extended the date to April 30, after Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia expressed concern that she did not have enough time to determine the rule’s legality before its original scheduled effective date.

In the first of two district court rulings on the NLRB rule, Jackson rejected most of the National Association of Manufacturers’ challenge to the NLRB regulation (Nat’l Ass’n of Mfrs. v. NLRB, 2012 BL 58223, 192 LRRM 2999 (D.D.C. 2012)).

Jackson generally upheld the rule against challenges brought by NAM, the National Right to Work Legal Defense and Education Fund Inc., the Coalition for a Democratic Workplace, the National Federation of Independent Business, and several small businesses.

Finding that the NLRA gives the board a “broad, express grant of rulemaking authority,” Jackson rejected claims that the board’s decision to require the posting was arbitrary and capricious.

But Jackson found that two portions of the rule could not be enforced by NLRB.

She concluded that the board exceeded its statutory authority in promulgating a provision that would treat any failure to post the required notice as an unfair labor practice under the act. Jackson also held that a provision tolling the NLRA’s statute of limitations in any case at a job site where an employer failed to post the mandated notice was inconsistent with the language of the statute.

In its statement on the appellate court injunction, NLRB said it supported Jackson’s ruling that the board had statutory authority to adopt a notice-posting requirement. The agency said, however, it will appeal the district court’s rulings on the rule’s enforcement provisions.

NAM and the other plaintiffs in the District of Columbia lawsuit asked Jackson to block enforcement of the NLRB rule while they pursued an appeal to the D.C. Circuit, but she denied the request.

The groups then filed their appeal as well as an emergency motion asking the appeals court to enjoin the board from enforcing the rule pending resolution of the appeal.

NLRB opposed a delay in enforcement of the regulation, arguing that the groups did not show they will prevail in the D.C. Circuit or that any irreparable harm would result if the rule went into effect as scheduled and was later struck down by the appellate court.

But Judges David S. Tatel, Janice Rogers Brown, and Brett M. Kavanaugh said in a per curiam opinion that “uncertainty” about enforcement of the rule “counsels further in favor of temporarily preserving the status quo while this court resolves all of the
issues on the merits.”

The D.C. Circuit cited the ruling by the District of South Carolina, as well as recent board action postponing implementation of the rule.

“That postponement is in some tension with the Board’s current argument that the rule should take effect during the pendency of this court’s proceedings before this court has an opportunity to … consider the legal merits,” the appeals court said.

The D.C. Circuit enjoined NLRB from implementing the regulation pending appeal, and ordered an expedited briefing schedule, beginning with a May 15 due date for the filing of briefs challenging the NLRB rule. The court directed the clerk of court to schedule an oral argument in September.

In the lawsuit filed by the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce, Judge David C. Norton took a different view of the NLRB regulation and the board’s authority to adopt it (Chamber of Commerce v. NLRB, D.S.C., No. 11-cv-2516).

Reviewing the text of the NLRA, including Section 8’s prohibition on unfair labor practices and Section 9, giving the board authority over representation case issues, the court said “the NLRA does not require employers to post general notices of employee rights under the Act.”

Norton said Section 6 of the act only supports regulations that are “necessary to carry out” other NLRA provisions. “It can be said that the notice-posting rule ‘aids’ or ‘furthers’ the aspirational goals of Section 1 by notifying employees of their rights under Section 7,” Norton wrote, “but defendants have not shown that the rule is ‘necessary’ to carry out any other provision of the Act.”

Norton wrote, “the court finds that Congress did not intend to impose a notice-posting obligation on employers, nor did it explicitly or implicitly delegate authority to the Board to regulate employers in this manner.”

NLRB said it disagrees with the ruling in Chamber of Commerce v. NLRB and will file an appeal.  04.18.2012.


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