HR Management & Compliance

Appeal Planned Over NLRB Poster Court Ruling

Although a federal district court in Washington, D.C., has ruled that the controversial employee rights poster requirement will go into effect April 30, the legal wrangling over the issue likely isn’t over.

The ruling from U.S. District Court Judge Amy Berman Jackson on March 2 is a partial victory for the National Labor Relations Board (NLRB) since it says the NLRB has the authority to issue the rule. But the court struck down the provision that would have made noncompliant employers guilty of an automatic unfair labor practice.

In a separate ruling, the court refused to rule on the legality of President Barack Obama’s recess appointments to the NLRB in January. A part of the lawsuit against the poster requirement challenged the legality of those appointments, which kept the Board from losing a quorum at the end of 2011 after terms ended for two Board members.

The National Federation of Independent Business (NFIB) said in a statement on the day of the ruling that it plans some kind of appeal. “We are pleased that the court has recognized that the Board far exceeded its statutory authority in attempting to take punitive enforcement measures against small-business owners who failed to comply with the poster rule,” said Karen Harned, executive director of the NFIB’s Small Business Legal Center. “But in ruling that the NLRB does not possess the authority to enforce the poster rule as an unfair labor practice only, it is essentially handing the small-business community a quarter of a loaf.

“Among other things, we are concerned that this decision will encourage frivolous lawsuits by unions against small-business owners who refuse to comply,” Harned said. She added that the NFIB believes the court was wrong to deny the challenge to the recess appointments.

Without the recess appointments, the normally five-member panel would have been reduced to two members. Without a quorum, the Board wouldn’t be able to enact the poster rule.

In denying a motion seeking a ruling on the legality of the recess appointments, the judge said some of those filing the suit “have attempted to shoehorn a challenge to the President’s recent recess appointments” into the case. The judge said the poster rule was written by “a quorum of undisputedly duly authorized members well before the recess appointments were announced,” and she therefore declined “this invitation to take up a political dispute.”

The ruling allowing the NLRB’s poster requirement means that most private-sector employers will need to post a notice explaining workers’ rights under the National Labor Relations Act (NLRA) — even if they’re nonunion employers. The poster requirement sparked the lawsuit and general outrage among some in the business community who felt the NLRB was overstepping its authority by requiring the notice.

The NLRB first proposed the rule requiring the new poster in December 2010 and took comments for 60 days. The Board received nearly 7,000 comments, according to a list of frequently asked questions on the NLRB website. The final rule was posted in the Federal Register on August 30, 2011, and was set to take effect November 14, but the date was changed to April 30 after opposition arose.

The new poster 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 those activities. The notice also provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

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