Tag Archives: unfair labor practice

D.C. Circuit Strikes Down NLRB Notice Rule

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).

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Union Decertification Case Law

The D.C. Circuit Court of Appeals, in SFO Goodnite Inn v. NLRB, ____F.3d____ (D.C. Cir. Nov. 20, 2012), enforced  a National Labor Relations Board order finding a California hotel improperly withdrew recognition from a UNITE HERE local, rejecting the hotel’s argument that it lawfully relied on anti-union petitions signed by a majority of its employees.

In the decision, the court approved the NLRB’s interpretation of Hearst.

[T]he Board has now articulated a clear line for applying the Hearst presumption of taint in “the narrow circumstance where an employer unlawfully instigates or propels a decertification campaign, and then invokes the results of that campaign to justify its unilateral withdrawal of recognition from its employee’s representative.”

The Board explained that the Hearst presumption applies where the employer is directly involved in advancing a decertification petition, whereas the Master Slack test applies where the employer committed unfair labor practices unrelated to the petition that may have contributed to the erosion of support for the union.

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