NLRB poster rule could prompt employee questions

A federal district court decision on a National Labor Relations Board (NLRB) rule requiring employers to post notices informing workers of their right to unionize could have a wide-reaching impact on most U.S. employers and their workers, according to experts.

Judge Amy B. Jackson of the U.S. District Court for the District of Columbia ruled on March 2, 2012, that the NLRB can require employers to display notices regarding worker rights under the National Labor Relations Act. However, Jackson struck down provisions of the rule designed to punish employers that don’t display the notice.

The judge found that the NLRB overstepped its authority when it attempted to make noncompliance with the notification requirement an automatic unfair labor practice. Jackson ruled that the automatic unfair labor practice (ULP) provision and a provision designed to suspend the statute of limitations by tying the time limit to an employer’s failure to post the notice were invalid.

The judge’s ruling is a mixed bag for employers and didn’t include any major surprises, according to attorneys familiar with the issue.

“If you paid attention to the court proceedings and took note of the questions the judge was asking, then you could pretty well predict where this decision was headed,” said G. Roger King, a partner with the Columbus, Ohio, office of the law firm Jones Day. “It was pretty evident from the judge’s line of questioning that she was set to overrule the ULP provision of the rule but would most likely leave the notice requirement intact.”

Experts agreed that the ruling was a victory for the NLRB and organized labor. While the judge did limit the scope of the notification rule by invalidating the ULP and statute-of-limitation provisions, the NLRB can move forward in implementing the notice requirement. Pending any appeals, the notice regulation is scheduled to take effect on April 30, 2012.

Copies of the required notification are available for download from the NLRB’s website. The notices must be placed in locations where employers post other employment-related notifications, such as employee bulletin boards and break rooms. In some cases, the notice will have to be posted on an employer’s Internet or intranet sites if a business has posted other employment-related notices online.

NLRB Chairman Mark Pearce told reporters that he was pleased with Jackson's decision and stated that the new notice will “provide American workers with meaningful awareness of their rights and protections under federal labor law.”

AFL-CIO officials said they largely agreed with the ruling.

“While the judge invalidated two sensible enforcement mechanisms in the rule, her decision affirms that the board has ample authority to enforce the notice-posting requirement on a case-by-case basis,” AFL-CIO General Counsel Lynn Rhinehart told The Wall Street Journal.

Most employers covered

The notice requirement of the rule applies to most U.S.-based employers, which could catch thousands of businesses off guard, according to Paul Salvatore, a partner in the New York law office of Proskauer Rose.

“The new notice rule and this court decision will have an impact even if a company’s employees have never engaged in any labor organizing activities,” Salvatore said. “And many employers appear to have the attitude that if their workers aren’t unionized, then this doesn’t apply to them and therefore they don’t have to pay attention. … The reality is, this court ruling will affect millions of U.S. businesses.”

The notice requirement applies to all employers and employees that are subject to the National Labor Relations Act, which is approximately 6 million businesses and 130 million workers. The requirement does not apply to businesses that aren’t covered by the NLRA, which generally includes employers in the transportation, mining and agricultural industries.

“The scope of this new notification requirement is huge, and employers need to be aware that this change is coming,” said Michael J. Lotito, a partner in the San Francisco office of the law firm Jackson Lewis.

While posting the notice shouldn’t create too much hardship for most employers, the new notices could generate issues that employers should be prepared to address, according to Lotito.

“First of all, it could present problems for employers that have multiple locations spread out over a wide area,” Lotito said. “These businesses will have to think about things like where they post the notices to ensure that it will be seen by all employees.”

In addition, the notice could generate questions from employees about their rights to unionize, Lotito said.

“There are many businesses that have been union-free for their entire existence and don’t have much if any experience dealing with questions from employees about union representation,” Lotito said. “The workplace poster required by the NLRB may bring up some questions that supervisors and managers aren’t prepared to handle.”

Lotito, Salvatore and King advised employers to review their employment policies and be prepared to answer questions.

“Training and reviewing employment policies with your organization’s supervisors is a good idea. Employers need to be prepared, and a wrong response from management if employees begin asking questions about their organizing rights could land an employer in hot water,” Lotito said.

Some management attorneys have voiced the opinion that employers could express their concerns about unions and even post a notice regarding an employer’s rights guaranteed under the NLRA.

John Raudabaugh, an attorney with the National Right to Work Defense Foundation and a former member of the NLRB, isn’t sure that this is sound advice.

“My advice to employers would be to do what is required under the NLRA and to consult with the attorneys on the best approach to take,” he said. “Employers have different workplace situations, different workforce makeups and different cultures, so employers should talk with their attorneys and figure out what steps they should take.”

Raudabaugh worked on the legal challenge to the notice rule that was filed by the National Association of Manufacturers, the National Right to Work Defense Foundation and the National Federation of Independent Business. These groups said they planned to appeal Jackson’s ruling and were asking the federal courts to issue an injunction to block the rule from taking effect until the appellate court has a chance to review the case.

Raudabaugh said he believes the case will eventually reach the Supreme Court.

Bill Leonard is a senior writer for the Society for Human Resource Managment (SHRM). Find out more about human resources at ToolkitHR.com.