As we have discussed in earlier posts found here and here, several national trade associations challenged the NLRB’s Rule that requires all employers covered by the National Labor Relations Act to post a notice notifying employees of their rights under the Act. In response to those filings, a federal district court upheld the posting requirement, but struck down the Rule’s enforcement provisions that considered an employer’s failure to comply with the posting requirement an unfair labor practice. The court similarly struck down a provision within the Rule that extended the time an employee could file an unfair labor practice against an employer that failed to comply with the posting requirement.
In overturning the enforcement provisions, the court distinguished between an employer’s intentional refusal to post the notice with the hopes of interfering with its employees’ organizational efforts from an employer who simply failed to post the notice without any improper motive. As the court noted, “a mere unwillingness to help” is not equivalent to an attempt to obstruct. Instead, on a case-by-case basis, the NLRB may consider an employer’s “knowing and willful refusal to comply” with the notice-posting requirement as evidence of anti-union animus during a proceeding where the employer’s motive is relevant.
With regard to the tolling of the Section 10(b) statute of limitations, the court held that the Act “does not authorize the Board to enact a rule which permits it to toll the statute of limitations in any future unfair labor practice involving a job site where the notice was not posted" (emphasis added). The court concluded that Congress did not give the Board the authority to fill any gap it perceived in the statute of limitations as enacted by Congress in Section 10(b) of the Act.
Additionally, the court refused to consider the plaintiffs’ challenge to President Obama’s December 2011 recess appointment. The court ruled that the Rule was promulgated prior to the recess appointments and passed with a quorum of NLRB Members. As such, the court declined “this invitation to take up a political dispute that is not before it.”
It is likely that the trade associations will appeal this decision to the Court of Appeals. Unless and until appeal is successful in enjoining the Board from enforcing this Rule, employers will be required to post the 11-by-17-inch poster in a conspicuous location seen by all employees in the workplace by the April 30, 2012 deadline, when the rule takes effect, but the penalty for declining to do so is less clear now.