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NLRB POSTING UPDATE - YOU MAY HAVE TO POST BUT THE CONSEQUENCES FOR NOT DOING SO ARE MINIMAL

Posted by Attorney Roger L. Pettit in Business Management, Labor Relations / Comments

In previous blog posts we have discussed the National Labor Relations Board’s new posting rule (the Final Rule) which has been delayed several times.  The delays were, in part, because of lawsuits filed by various employer groups who challenged The Final Rule on several grounds.  The primary challenges included arguments that being required to post the NLRB’s notice violated the employer’s First Amendment Rights; that the Final Rule was arbitrary and capricious; that the Final Rule was invalid because of the recess appointments by President Obama of board members whose nominations had been blocked, and the NLRB lacked authority to legislate penalties against employers for failing to post the Notice.

On March 2, 2012, a trial judge in the United States District Court for the District of Columbia upheld the NLRB’s right to require the posting.  The court rejected the First Amendment challenge finding that other federal regulations also require the posting of Notices in the workplace.  The judge also found that the Final Rule was neither arbitrary nor capricious, pointing out that the NLRB had provided ample opportunity for public comments and notice of imposition of the Final Rule.

The judge declined to find that the Final Rule was invalid due to the questionable legitimacy of the recess appointment of three Board members, finding that the Agency had in fact enacted the Final Rule when the Board had a sufficient quorum before the recess appointments occurred.

Most importantly to employers however, was the court’s decision with respect to the penalties for non-compliance.  The court struck down the provision in the Final Rule that failure to post the Notice would automatically constitute an unfair labor practice.  Additionally, the court struck down the tolling of the 6 months Statute of Limitations which is applicable to other unfair labor practice charges, for not posting the Notice.

The court’s ruling did not completely strip the Final Rule of consequences for employers who fail to post the Notice.  The court held that willful, non-compliance of the posting rule could be used as evidence of illegal anti-Union animus and may support an unfair labor practice charge depending on the facts of each individual case.

The Final Rule becomes effective April 30, 2012; however, some of the plaintiffs have filed an appeal.  The trial court denied a Motion to Stay Enforcement of the Final Rule pending the appeal.  The Court of Appeals has not received a similar motion to stay nor acted on it as of the date of this writing.

 

Attorney Roger L. Pettit
Attorney Roger L. Pettit