In NAM v. NLRB, No. 12-5068 (D.C Cir. May 17, 2013), the D.C. Circuit Court of Appeals struck against the NRLB notice rule.
The background is as follows. On August 30, 2011, the National Labor Relations Board (NLRB) published a final rule regarding notice posting. 76 Fed. Reg. 54,006. That final rule provides:
All employees subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures…”
39 C.F.R. 104.202(a). The final rule also declares that failure to post this notice is an unfair labor practice (ULP). In other words, if an employer fails to put up a NLRB notice, the employer violates the National Labor Relations Act (NLRA). This is essentially the focus for the Court of Appeals.
The court explained that under Section 8(e), the Board cannot find non-coercive employer speech to be an ULP or evidence of an ULP. The Court of Appeals found that the NLRB’s final rule did both. The court states,
Under the rule an employer’s failure to post the required notice constitutes an unfair labor practice. See 29 C.F.R. 104.210, 104.201. And the Board may consider an employer’s ‘knowing and willful’ noncompliance to be ‘evidence of antiunion animus in cases in which unlawful motive [i]s an element of an unfair labor practice.’ 76 Fed. Reg. at 54,035-36; see also 29 C.F.R. 104.214(b).
(as in original).
The National Labor Relations Board has issued a Final Rule that will require employers to notify employees of their rights under the National Labor Relations Act as of November 14, 2011.
Private-sector employers (including labor organizations) whose workplaces fall under the National Labor Relations Act will be required to post the employee rights notice 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. Copies of the notice will be available from the Agency’s regional offices, and it may also be downloaded from the NLRB website.
The notice, which is similar to one required by the U.S. Department of Labor for federal contractors, states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from 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.
The Board received approximately 6,500 comments during the 60-day comment period following publication of the Proposed Rule in the Federal Register, and accepted an additional 500 that arrived after the deadline. In response to the comments, some parts of the rule were modified. For example, employers will not be required to distribute the notice via email, voice mail, text messaging or related electronic communications even if they customarily communicate with their employees in that manner, and they may post notices in black and white as well as in color. The final rule also clarifies requirements for posting in foreign languages. Similar postings of workplace rights are required under other federal workplace laws
via Workplace Prof Blog.