Challenge to NLRB’s New Posting Rule is Only Partially Successful

Challenge to NLRB’s New Posting Rule is Only Partially Successful

This blog has reported on the National Labor Relations Board’s proposed rule that would require employers to post a notice about employees’ rights to organize.  Horrified employers filed suit to stop the rule from going into effect, and while the case was pending, the NLRB has postponed the effective date a couple of times.

Last week, the federal court in Washington upheld the rule about posting.  Stating that such a rule was well within the NLRB’s mission, and was well-supported by data showing that employees often have no idea of their rights, the requirement to post remains.

The NLRB had less success with its attempt to punish violations.  One of the sanctions for failing to post was to assume that employees were harmed by the lack of the poster, and thus the employer interfered with employee’s rights under the statute.

“The Court is not making an absolute statement that inaction can never be interference; rather this memorandum opinion simply holds that the Board cannot make a blanket advance determination that a failure to post will always constitute an unfair labor practice.”

Second, the NLRB sought to extend the statute of limitations for the time period during which the poster was not available.   Employees must make a complaint within 6 months of the activity alleged to violate the National Labor Relations Act; the Board had sought to keep that time period open where the poster had not been put up.

An interesting argument by the National Association of Manufacturers, which challenged the rule for violating its members’ First Amendment rights, was dismissed by the District Judge.  The poster is “government speech,” with its wording and headings clearly from the federal government.  Therefore the rule does not require any individual or company to speak anything in particular.

Because the enforcement procedures are sufficiently separate from the poster requirements, this judge upheld the requirement that by April 30, every employer subject to the federal law erect this poster.  An appeal was filed on March 5.

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