NLRA Rights Poster Requirement is Lawful but NLRB's Sanctions for Failing to Post are Invalid: DC District Court | Practical Law

NLRA Rights Poster Requirement is Lawful but NLRB's Sanctions for Failing to Post are Invalid: DC District Court | Practical Law

In National Association of Manufacturers v. NLRB, the US District Court for the District of Columbia held that the National Labor Relations Board (NLRB) did not exceed its authority under the National Labor Relations Act (NLRA) when it issued a rule that requires employers to post notices apprising employees of various rights under the NLRA. However, the court held that the NLRB exceeded its authority by including provisions in the rule that make a failure to post the notice an unfair labor practice (ULP) and by extending the statute of limitations indefinitely for filing ULP charges against employers that fail to post the notice.

NLRA Rights Poster Requirement is Lawful but NLRB's Sanctions for Failing to Post are Invalid: DC District Court

by PLC Labor & Employment
Published on 06 Mar 2012 • USA (National/Federal)
In National Association of Manufacturers v. NLRB, the US District Court for the District of Columbia held that the National Labor Relations Board (NLRB) did not exceed its authority under the National Labor Relations Act (NLRA) when it issued a rule that requires employers to post notices apprising employees of various rights under the NLRA. However, the court held that the NLRB exceeded its authority by including provisions in the rule that make a failure to post the notice an unfair labor practice (ULP) and by extending the statute of limitations indefinitely for filing ULP charges against employers that fail to post the notice.

Key Litigated Issue

On March 2, 2012, the US District Court for the District of Columbia issued an opinion in National Association of Manufacturers v. NLRB. The key litigated issue is whether the NLRB had the authority to:
  • Require employers to post its NLRA rights notice.
  • Sanction employers that fail to post the notice by:
    • making a failure to post the notice an unfair labor practice (ULP); and
    • tolling the statute of limitations indefinitely for employees to file ULP charges against the employer.

Background

In a final rule published in the Federal Register on August 30, 2011, the NLRB required employers to post notices to employees informing them of various rights under the NLRA (see Legal Update, NLRB Issues Final Rule Requiring Employers to Post Notices of NLRA Rights).
In the wake of three litigations (two were subsequently consolidated) challenging the NLRB's authority to issue the final rule, the NLRB postponed the effective date of the rule from November 14, 2011 to January 31, 2012 (see Legal Update, NLRB Postpones Deadline to Post NLRA Rights Poster). On December 23, 2011, the NLRB postponed the effective date of the rule from January 31, 2012 to April 30, 2012 to allow time for courts to resolve legal challenges to the NLRB's rule (see Legal Update, NLRB Postpones Effective Date of Notice of NLRA Rights Posting Rule to April 30, 2012).
In the District Court for the District of Columbia, the National Association of Manufacturers (NAM) and National Right to Work Legal Defense and Education Foundation (NRTW), whose lawsuits were consolidated, alleged that the NLRB lacked authority to:
  • Make and enforce a notice posting rule.
  • Require employers to post a notice absent a charge or petition filing.
  • Deem the failure to post a ULP.
  • Toll the statute of limitations for filing a ULP charge.
Additionally, the plaintiffs allege that the rule violates plaintiff's First Amendment rights to refrain from speaking.

Outcome

The DC District Court held that the NLRB:
  • Did not exceed its authority under the NLRA in promulgating a rule requiring employers to post a notice of employees' rights under the NLRA.
  • Exceeded its authority under the NLRA by:
    • deeming an employer's failure to post a ULP; and
    • tolling the statute of limitations for claims brought by employees against employers that failed to post the notice.
The court found that:
  • Congress granted the NLRB broad rule-making authority to implement the NLRA, which could include requiring notice-posting, even though the NLRA does not contain a specific provision about notice-posting.
  • Congress defined what could constitute a ULP within the NLRA and did not grant the NLRB authority to create new kinds of ULPs based on an employers' failure to educate employees about their rights under the NLRA or facilitate exercise of those rights.
  • Congress expressly limited the statute of limitations for an employee to file a ULP charge to six months. The NLRB could not over-write that limitations period.
  • The notice requirement is government speech and therefore does not compel employers to say anything.
The court denied a separate motion to amend the complaint in this case so that plaintiffs could challenge the President's recess appointments to the NLRB as unconstitutional.
The NAM and NRTW filed an appeal to the US Court of Appeals for the DC Circuit to overturn the DC District Court's ruling to the extent that it permitted the NLRB to mandate notice-posting and rejected their First Amendment argument. Plaintiffs also filed a motion for injunctive relief requesting that the DC District Court enjoin the posting requirement pending the appeal.

Practical Implications

Unless the DC District Court grants an injunction or the NLRB postpones the effective date of its poster rule, employers will be required to post the NLRB's notice of NLRA rights (in English and another language if at least 20% of employees are not proficient in English and speak the other language). However, the consequences for not posting the notice are not yet clear.
Although the NLRB cannot impose the automatic penalties for failing to post that are identified in its rule, employers should expect that the NLRB will penalize employers that fail to post, on a case-by-case basis. In particular, employers that do not post the notice should expect the NLRB to find the failure to post:
  • Evidence of the employers' union animus in separate ULP proceedings.
  • Grounds for:
    • overturning the results of a union certification or decertification election; or
    • equitably tolling the statute of limitations for filing ULP charges where a tardy charging party shows he did not know his NLRA rights.

Court Documents

  • Nat'l Assoc. of Mfrs. v. NLRB, No. 11-1629 (D.D.C. March 2, 2012).