Postpone the Posting!

By: Ryan Poor - Partner, Ice Miller LLP and Tami Earnhart - Partner , Ice Miller LLP

Category: Human Resources

The National Labor Relation Board's (NLRB) controversial posting requirement covering most private employers – union and non-union – has been postponed again. As many employers know, the NLRB issued a rule on Aug. 25, 2011, requiring that all employers covered by the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA. The deadline for the posting had been postponed previously to April 30, 2012, due to pending litigation, and is now postponed again.

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The notice, which is available on the NLRB website at www.nlrb.gov, includes information about the NLRA and (in order, as listed on the notice) the rights of employees to:

• organize a union;
• form, join or assist a union;
• bargain collectively;
• discuss wages, benefits and other terms and conditions of employment;
• raise complaints;
• strike or picket; or
• choose not to do any of these activities.

The notice also sets out actions that are illegal under the NLRA and the means by which employees may file a complaint, including contact information for the NLRB.

If ultimately required, the notice must be at least 11-by-17 inches and in the type and style prepared by the board. The notice must be posted in "conspicuous places where they are readily seen by employees, including all places where notices to employees concerning personnel rules or policies are customarily posted." If the employer customarily communicates with employees about policies and procedures on an Internet or intranet site, the notice must also (in addition to the physical posting) be displayed "prominently" - as with all other similar notices - on that site. In addition, where 20 percent or more of the employees speak a language other than English, the notice must be posted in the language spoken by the employees. Employers may request translated copies of the notice from the board and will not be liable for posting until the translated notice is available.

The rule also contains consequences for employers who fail to post the notice. Under the rule, as issued, employers who fail to post will be subject to an unfair labor practice charge through the administrative processes of the NLRB. The board may order the employer to post the notice and order other possible (undefined) remedies. These could include - based on prior board decisions - emailing the notice to employees, if that is how the employer communicates. In addition, failure to post the notice could result in tolling of limitations periods for unfair labor practices, meaning that employees would have longer than six months to file a charge, and the failure could be used as evidence of unlawful motive (such as hostility against unions) in other NLRB cases where motive is relevant.

The NLRB’s posting rule caused a significant concern for employers and led to two lawsuits filed in the District of Columbia and South Carolina. On March 2, 2012, the District Court for the District of Columbia upheld the right of the NLRB to require the posting of the notice but found that making the failure to post the notice an unfair labor practice and tolling the statute of limitations exceeded the NLRB’s rule-making authority. In contrast, on April 13, 2012, a District Court in South Carolina, struck down the posting requirement and held that the NLRB exceeded its authority. These divergent opinions left employers scratching their head – should they post, or wait until the legal conflict is resolved.

The U.S. Court of Appeals for the District of Columbia Circuit answered that question for employers by issuing an injunction on April 17, 2012, prohibiting enforcement of the NLRB’s posting rule until an appeal of a lower court's decision has been decided. The court's order sets out a briefing schedule and has oral arguments slated for September 2012 – meaning that we are unlikely to have a decision on the posting requirement until this fall at the earliest.

In the meantime, implementation of the posting requirement is on hold until further notice.

For more information on the NLRB's posting requirement, please contact Ryan Poor at (317) 236-5976 or ryan.poor@icemiller.com, Tami Earnhart at (317) 236-2235 or tami.earnhart@icemiller.com or any member of Ice Miller’s Labor and Employment Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

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