District Court Decides NLRB Poster Case

March 9, 2012

On March 2, the D.C. District Court ruled that the National Labor Relations Board (NLRB) was acting within its authority to require employers to hang posters outlining workers’ rights to unionize.

On Aug. 25, 2011, NLRB issued a 45 page final rule requiring all but the smallest employers to hang posters notifying employees of their right to unionize. The poster must be 11 by 17 inches and can either be downloaded from the NLRB Web site or picked up at any regional NLRB office. Initially, the rule was to take effect Nov. 14 but the effective date has been delayed until April 30, 2012. Penalties for non-compliance are potentially substantial. NSBA opposes this requirement.

The rule was the subject of a lawsuit challenging the NLRB’s authority to issue such a rule. Last week the U.S. District Court for the District of Columbia handed down its decision, concluding that the NLRB does have the authority to issue the rule requiring employers to post a notice of employee rights.

The Court also held that two provisions in the rule exceeded the authority granted to the NLRB by Congress. The Court ruled that the NLRB could not deem failure to post as an unfair labor practice per se. In the Court’s words, “the Board cannot make a blanket advance determination that a failure to post will always constitute an unfair labor practice.” The Court also held that the NLRB could not extend the statute of limitations for claims brought by employees against employers who failed to post the notice.

As was expected, the case was appealed to Court of Appeals for the District of Columbia by the Coalition for a Democratic Workplace–of which NSBA is a member–and others on Monday, March 5. That appeal was filed on the basis that the NLRB does not have rulemaking authority, the plaintiffs’ First Amendment claims, and their ongoing challenge to the NLRB’s recess appointments. Litigation on this issue is ongoing in South Carolina.

To read the court’s decision, click here.