We’ve been following the legal challenges to the NLRB’s notice-posting rule, which would require virtually all private-sector employers to post a notice informing employees of their right to join a union, among other rights under the National Labor Relations Act. Today, the United States District Court for the District of Columbia issued its decision in this closely-watched case, upholding the rule in part but severing certain provisions as unlawful.
The rule as issued by the NLRB had three main components—1. a requirement to post a physical notice containing language drafted by the NLRB; 2. a provision creating a new unfair labor practice for failing to post the notice; and 3. a provision allowing the NLRB to extend the six-month statute of limitations if an employer failed to post the notice. Today’s decision upholds the notice-posting requirement, but strikes down the provisions that create a new ULP and extend the statute of limitations.
While the court struck down most of the enforcement mechanisms, employers who fail to post the notice may still face consequences before the Board. The decision makes it clear that, while the blanket ULP created by the rule was unlawful, the Board may make an individualized determination that failure to post the notice was unlawful in a specific case (e.g. where the employer refused to post the notice when faced with a union organizing drive).
Unless the Board postpones the effective date in the event an appeal is filed, all employers must post the NLRB notice by April 30, 2012.©2013 Greenberg Traurig, LLP. All rights reserved.