Failure to Post NLRB Notice is “Unfair Labor Practice”

On August 30, 2011, the National Labor Relations Board (“NLRB”) issued a rule mandating that all employers subject to the NLRA “post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information containing basic enforcement procedures.”  In addition, the rule stated that “[f]ailure by [employers] to post the employee notice may be found to interfere with, restrain, or coerce employees in the exercise of the rights” guaranteed by the NLRA.  The rule operates to toll the statute of limitations for filing an unfair labor practice charge against the employer.  In the words of one dissenting member of the NLRB, the NLRB has arbitrarily and capriciously “conjure[d] up a new unfair labor practice based on a new statutory obligation.”

This rule will have a dramatic effect on employers throughout the nation and leave them exposed to civil lawsuits by their employees.  Because of this, the National Association of Manufacturers filed a complaint against the NLRB in federal court seeking a judicial declaration that the new rule exceeds the NLRB’s authority.  They are requesting injunctive relief preventing the NLRB from implementing and enforcing the new rule.  As the case proceeds, NAM will, no doubt, argue that when Congress wants a notice-posting requirement, as it has expressly mandated in other federal labor and employment laws, such as Title VII, the ADEA, the FMLA, and OSHA, it puts the requirement in the statute.  Here, the absence of any expressed intent by Congress that employers post notice of NLRA rights is evidence that it did not intend for such a requirement to be imposed.  This is particularly true where the failure to post notice would itself be deemed an unfair labor practice.

Since the rule is scheduled to go into effect on November 14, 2011 and the lawsuit against the NLRB seeks a preliminary injunction, we could soon see a preliminary decision from the court at least outlining its initial view of the merits of the NLRB’s rulemaking.  But how the court may rule is anyone’s guess.  The case is being heard by Judge Amy Berman Jackson, a new judge who was recently appointed to the United States District Court for the District of Columbia by President Obama in 2011.  Previously a criminal and civil litigation defense lawyer in private practice, there is presently little basis for discerning Judge Jackson’s judicial philosophy.

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