A U.S. District Court judge on December 19th had pointed questions for lawyers from the National Labor Relations Board and for groups challenging NLRB’s notice-posting rule, but at the conclusion of a hearing that lasted nearly two hours, she asked the board to consider postponing the Jan. 31, 2012, effective date of the controversial rule (Nat’l Ass’n of Mfrs. v. NLRB, D.D.C., No. 11-cv-1629, motions hearing 12/19/11).
The hearing was held to consider legal arguments of NLRB and the National Association of Manufacturers, the National Right to Work Legal Defense and Education Fund Inc., the Coalition for a Democratic Workplace, and the National Federation of Independent Business along with several small businesses that joined in challenging the NLRB rule, which requires employers to post a notice informing employees of their federal labor law rights.
Actively questioning lawyers on both sides of the dispute, the judge pressed the challengers on their arguments that the National Labor Relations Act does not expressly give the board authority to require notice postings.
“Why do they need express notice-posting authority if they have express rulemaking authority?” Jackson asked a lawyer arguing for the National Association of Manufacturers.
But the judge also questioned NLRB’s authority to treat a failure to post the new employee rights notice as an unfair labor practice.
The judge stated that said she would issue an order within the time given to her if she is required to do so, but she called Jan. 31 an “arbitrary” date, and said the legal issues raised by the parties “deserve more time than I’ve been given.” The judge said she understands the board may lack a quorum to act after December, but she asked that board members consider some action that would defer implementation of the rule until she has been able to resolve the legal challenges.
Acting on a 1993 petition for rulemaking, a divided NLRB proposed the regulation in December 2010 and published a final rule in the Aug. 30 Federal Register (76 Fed. Reg. 54,006).
Citing Section 6 of the NLRA, which gives the agency authority to adopt “such rules and regulations as may be necessary to carry out the provisions of this Act,” a three-member board majority consisting of then-Chairman Wilma B. Liebman and Members Craig Becker and Mark Gaston Pearce adopted the rule as a measure to address a “knowledge gap” that they said left most American workers unaware of their NLRA rights.
Member Brian E. Hayes dissented from the board’s proposing the rule as well as its final adoption, finding that the act did not authorize the board’s action, which he called “patently arbitrary and capricious.”
The rule will apply to any employer covered by the NLRA, excluding states or political subdivisions not subject to board jurisdiction.
The final rule included a summary of current board standards for more than two dozen types of businesses, along with the board’s general retail standard providing coverage of an employer with an annual gross volume of business of $500,000 or more, and the nonretail standard giving the board jurisdiction over employers with annual inflows or outflows across state lines that meet or exceed $50,000.
NLRB estimated in its notice of proposed rulemaking that the “great majority” of 6 million small businesses in the United States will be required to comply with the notice-posting requirement.
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.
In most cases, the board predicted, employers will fail to post the notice only because they are unaware of the new requirements, and “when it is called to their attention, they will comply without the need for formal action or litigation.”
An unfair labor practice charge could, however, be filed against an employer that refused to comply with the rule, and NLRB’s general counsel and board will be able to process the charge in the same manner as other Section 8(a)(1) allegations and seek a cease-and-desist order to prevent continuing noncompliance, as well as “additional remedies” that “may be appropriately invoked in keeping with the Board’s remedial authority.”
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 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.” 12.20.2011