The HR Specialist

Court: No need to display the NLRB's pro-union poster

04/17/2012

UPDATE   May 7, 2013

Federal appeals court ruling: Another blow to NLRB's workplace poster mandate

A federal appeals court on May 7 struck down a two-year-old National Labor Relations Board (NLRB) rule that would have required private-sector employers to post a notice informing employees of their right to join and form a union.

The ruling means no employer can be compelled to display the 11" X 17" "Employee Rights Under the National Labor Relations Act" poster.

The controversial poster mandate has been on hold due to a series of legal challenges (see below), and is still under review by another federal court. The requirement to display the poster would have applied to all employers covered under the National Labor Relations Act—in other words, almost all private-sector workplaces, whether they are unionized or not.

Note: Federal contractors must still display a similar poster mandated by a different NLRB rule.

Pro-business groups applauded the court’s ruling, saying the “activist” and “aggressive” NLRB did not have the authority to force every employer to display such a poster.

Jay Timmons, president and CEO of the National Association of Manufacturers, the trade group that filed the appeal, said, "The poster rule is a prime example of a government agency that seeks to fundamentally change the way employers and employees communicate. The ultimate result of the NLRB's intrusion would be to create hostile work environments where none exist."

So does this mean the end of the poster mandate idea? The NLRB said it is "currently reviewing" the appeals court's ruling and "will make a decision on further proceedings at the appropriate time." An NLRB spokesman noted that the poster rule is also being reviewed by another federal court, which could bring the issue back to life.

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UPDATE April 17, 2012

Injunction stops April 30 deadline for pro-union poster

A federal appeals court in Washington, D.C. today issued an injunction blocking the National Labor Relations Board (NLRB) from requiring most employers to display a controversial poster that informs workers of their right to form and join a union.

The injunction indefinitely postpones the posting requirement, which was to have taken effect on April 30. It means employers don’t have to display the poster for now.

The much-delayed poster (a chronology appears below) is opposed by a coalition of business groups that sued to stop the NLRB from implementing the notice rule. The groups, led by the United States Chamber of Commerce, argue that the poster is blatantly pro-union.

Last week, a federal judge in South Carolina ruled that the NLRB lacked the authority to compel employers to place the poster in their workplaces. That decision directly contradicted an earlier ruling by a District of Columbia federal court, which said the NLRB did have that authority under the National Labor Relations Act.

The injunction resulted from an appeal of the D.C. case. A three-judge panel of the U.S. Court of Appeals for the District of Columbia said it issued the injunction to preserve the status quo until litigation around the poster runs its course. That should take several months.

What should employers do if they have already tacked up the poster in their workplaces? The injunction means they can remove it.

Note: Some employers that began displaying the poster before this injunction tried to counter its pro-union slant by displaying a separate notice alongside this poster that explains the company’s view on union organizing.

The best strategy: Wait and see what the courts and NLRB decide this fall. If you are ultimately required to tack up this poster, do nothing to call attention to it. If you have a five-in-one laminated poster, it will become a six-in-one poster and most employees won’t notice.

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UPDATE April 13, 2012

Courts split on NLRB pro-union poster requirement

On April 13, a federal district court in South Carolina invalidated the National Labor Relations Board's (NLRB) notice posting rule, which would have required most employers to post a notice by April 30 explaining employee rights employees to form and join a union.

The court held that the NLRB "exceeded its authority in violation of the Administrative Procedures Act.”

The decisions conflicts with a March decision by a federal court in the District of Columbia, which ruled that the NLRB does have the authority to require employers to display the poster.

It remains to be seen whether the NLRB will voluntarily delay implementation of the poster requirement until further appeals are exhausted. The plaintiffs in the South Carolina case—the U.S. Chamber of Commerce—could ask the court to issue a permanent injunction prohibiting enforcement of the rule on a nationwide basis.

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UPDATE March 5, 2012

Court upholds controversial pro-union poster

A federal judge on March 2 ruled that the National Labor Relations Board (NLRB) did not overstep its authority when it ordered employers to post a controversial notice that informs employees of their right to form and join a union.

However, Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia struck down an NLRB rule that would have made it an unfair labor practice for employers to refuse to post the notice.

A coalition of business groups had sued to stop the NLRB poster requirement, arguing that the board lacked statutory authority to require employers to put up the poster. The case is National Association of Manufacturers v. NLRB (No. 11-1629, ABJ, U.S. Dist. for the District of Columbia, 2012). Many employers consider the posting requirement blatantly pro-union.

The court’s ruling left open the possibility that—even without statutory authority to label failing to post the notice an unfair labor practice—the NLRB could still use its hearing process to compel posting on a case-by-case basis.

“While it is a step in the right direction, the court’s decision leaves employers little to celebrate,” said Ben Glass, an employment law attorney with the Ogletree Deakins firm in Charleston, S.C. “The notice posting requirement still stands.”

Most private employers must begin displaying the posters by April 30.

The posting requirement has been postponed several times since it was first written in August 2011. See below for a complete history of the poster, as well as links to additional information

Legal experts expect an appeal of the court’s decision. Meanwhile, a similar challenge to the NLRB poster requirement is still pending in federal court in South Carolina.

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UPDATE Jan. 3, 2012

NLRB pushes back pro-union poster requirement to April 30

The National Labor Relations Board (NLRB) has postponed until April 30 the date when employers must display a new pro-union poster. The change came at the request of a Washington, D.C., federal court hearing a legal challenge to the rule.

A coalition of business groups has sued to stop the NLRB’s controversial poster, which is designed to inform workers of their rights to form and join a union. They say the NLRB overstepped its authority by mandating a blatantly pro-union notice.

This marks the second time the NLRB has delayed implementation of the posting requirement. The NLRB originally planned to require employers to post the notice by Nov. 14, 2011, but later pushed mandatory posting back to Jan. 31, 2012. Read below for details on the poster, its history and the NLRB’s employer requirements.

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UPDATE Oct. 6, 2011

NLRB postpones deadline for displaying new union rights poster:

Employers now must post by Jan. 31, 2012

The National Labor Relations Board (NLRB) has postponed until Jan. 31, 2012, the implementation date for a new poster describing employee rights to join a union. The NLRB had originally required employers to display the poster in their workplaces by Nov. 14, 2011.

In a statement, the NLRB said the two-and-a-half month delay was a response to "queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction." An NRLB representative told the Wall Street Journal that "many private-sector employers mistakenly think they are excluded "because they don't have a unionized work force."


To learn more about strategies for handling labor-relations issues in a new era of union organizing, listen to a recording of our recent webinar: Keeping Unions at Bay. This podcast will focus on 14 steps to better employee relations and the 10 early warning signs of union activity in your workplace.

The requirement to display the 11" X 17" "Employee Rights Under the National Labor Relations Act" poster applies to all employers covered under the National Labor Relations Act—in other words, almost all private-sector workplaces, whether they are unionized or not.

The NLRB rule does exempt businesses, "whose impact on interstate commerce, although more than de minimis, is so slight that they do not meet the Board's discretionary jurisdiction standards." The most common applicable standards are:

  • Organizations that exclusively use independent contractors, not employees;
  • Retail organizatons with annual gross volume of of business below $500,000;
  • Nonretail organizations with less than $50,000 in goods or services provided by the employer out of state (outflow) or purchased by the employer from out of state (inflow);
  • Organizations that fall below specific industry based thresholds for gross annual volume. (See the table in the Federal Register rule.)

Business groups including the U.S. Chamber of Commerce and the National Federation of Independent Business have filed lawsuits seeking to block implementation of the poster requirement. Their contention: That the NLRB overstepped its authority by mandating what the groups say is a blatantly pro-union message.

Between now and the end of January, the NLRB will work to educate employers about the poster requirement.

Follow these links for official NLRB information on the new poster.

Download the poster for free from the NLRB web site:

NLRB poster ruling

NLRB poster required of federal contractors

NLRB Fact Sheet on the new poster

Frequently asked questions (updated Oct. 5, 2011)

 


Aug. 26, 2011

The National Labor Relations Board (NLRB) announced on Aug. 25 that most private employers will soon have to display a new poster in their workplaces that notifies employees of their right to form and join a union.

Employers will be required to place the poster “where other workplace notices are typically posted. Also, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice on those sites.”

Read the official notice of the NLRB ruling here.

The 11-by-17-inch "Employee Rights Under the National Labor Relations Act" poster is similar to one that federal government contractors are already required to display.

The poster states that employees have the right to act together to improve wages, to form or join a union and to bargain collectively with their employer—and to choose not to do any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

To learn more about how employers can respond to organized labor’s increasing efforts to unionize private-sector workplaces, order “Keeping Unions at Bay,” a recording of our popular webinar.

Download free copies of the poster from the NLRB's website here.

If 20% or more of an employer’s workforce isn’t proficient in English and speaks another language, a foreign-language poster must be displayed. That’s true of all languages spoken by 20% or more of workers. The NLRB said it will provide translated versions of the poster.

The new posting requirement applies to all employers covered under the National Labor Relations Act (NLRA). The NLRA applies to most private-sector workplaces. Employers of airline, railroad, and agricultural workers are not covered under the NLRA. Also, the NLRB rule exempts businesses, "whose impact on interstate commerce, although more than de minimis, is so slight that they do not meet the Board's discretionary jurisdiction standards." The most common applicable standards are:

  • Organizations that exclusively use independent contractors, not employees;
  • Retail organizatons with annual gross volume of of business below $500,000;
  • Nonretail organizations with less than $50,000 in goods or services provided by the employer out of state (outflow) or purchased by the employer from out of state (inflow);
  • Organizations that fall below specific industry based thresholds for gross annual volume. (See the table in the Federal Register rule.)

 

FOR MORE INFORMATION

Download the poster for free from the NLRB web site:

NLRB poster ruling
NLRB poster required of federal contractors
NLRB Fact Sheet on the new poster

Frequently asked questions (updated Oct. 5, 2011)

Q&A on the new posting requirement

Adapted from a Q&A document published by the National Labor Relations Board on Aug. 25, 2011:

Does my company have to post the notice?

The posting requirement applies to all private-sector employers (including labor unions) subject to the National Labor Relations Act, which excludes agricultural, railroad and airline employers. In response to comments received after the proposed rule was announced, the Board has agreed to exempt the U.S. Postal Service for the time being because of that organization’s unique rules under the Act.

When will the notice posting be required?

The final rule takes effect Jan. 31, 2012.

There is no union in my workplace; will I still have to post the notice?

Yes. Because NLRA rights apply to union and non-union workplaces, all employers subject to the Board’s jurisdiction (aside from the USPS) will be required to post the notice.

I am a federal contractor.  Will I have to post the notice?

The Board’s notice posting rule will apply to federal contractors, who already are required by the Department of Labor to post a similar notice of employee rights. A contractor will be regarded as complying with the Board’s notice posting rule if it posts the Department of Labor’s notice.

I operate a small business. Will I have to post the Board’s notice?

The rule applies to all employers subject to the Board’s jurisdiction, other than the U.S. Postal Service. The Board has chosen not to assert its jurisdiction over very small employers whose annual volume of business is not large enough to have a more than a slight effect on interstate commerce. The jurisdictional standards are summarized in the rule.

How will I get the notice?

The Board will provide copies of the notice on request at no cost to the employer beginning on or before November 1, 2011. These can be obtained by contacting the NLRB at its headquarters or its regional, sub-regional, or resident offices. Employers can also download the notice from the Board’s website and print it out in color or black-and-white on one 11-by-17-inch paper or two 8-by-11-inch papers taped together. Finally, employers can satisfy the rule by purchasing and posting a set of workplace posters from a commercial supplier.

What if I communicate with employees electronically?

In addition to the physical posting, the rule requires every covered employer to post the notice on an internet or intranet site if personnel rules and policies are customarily posted there. Employers are not required to distribute the posting by email, Twitter or other electronic means.

Many of my employees speak a language other than English. Will I still have to post the notice?

Yes. The notice must be posted in English and in another language if at least 20% of employees are not proficient in English and speak the other language. The Board will provide translations of the notice, and of the required link to the Board’s website, in the appropriate languages.

Will I have to maintain records or submit reports under the Board’s rule?

No, the rule has no record-keeping or reporting requirements.

How will the Board enforce the rule?

Failure to post the notice may be treated as an unfair labor practice under the National Labor Relations Act. The Board investigates allegations of unfair labor practices made by employees, unions, employers, or other persons, but does not initiate enforcement action on its own.

What will be the consequences for failing to post the notice?

The Board expects that, in most cases, employers who fail to post the notice are unaware of the rule and will comply when requested by a Board agent. In such cases, the unfair labor practice case will typically be closed without further action. The Board also may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer. If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.

Can an employer be fined for failing to post the notice?

No, the Board does not have the authority to levy fines.

Was there a public comment period? What was the response?

The Board received more than 7,000 public comments after posting a notice of the proposed rule in the Federal Register. A detailed description of the comments and the Board’s response to them, including responsive modifications to the rule, may be found in the Preamble to the Final Rule. [1]


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