The Battle Rages On Over the NLRB’s Notice Posting Rule

By Glenn Duhl, Esq. & Kyle A. McClain

The National Labor Relations Board (NLRB), no stranger to controversy, has been embroiled in debate, criticism and legal challenges over its rule requiring millions of employers to post notice of employee rights about unionization and union activity. The “notice posting rule” was made final on August 30, 2011 and requires most private-sector employers to notify employees of their rights under the National Labor Relations Act (NLRA). The notification may be accomplished by posting in the workplace an 11×17 inch poster similar to other federal workplace posters containing notices of rights, rules and policies about topics such as discrimination and workplace safety. The poster must inform employees of their rights to organize and bargain collectively with their employers, among other NLRA guarantees. The NLRB provides compliant posters on its website in a variety of languages.

The rule has been championed by labor and attacked by management. The NLRB’s primary motivation in creating the rule is its general belief that many employees protected by the NLRA are unaware of their statutory rights and the rule will correct that. Supporters are quick to point out that the NLRB poster is objective and, in addition to informing employees of their rights to unionize, it explains the rights not to join a union and not to be coerced into unionizing by union officials. The NLRB claims that the rule will also promote statutory compliance by employers and unions. Others argue that the notice posting rule helps bridge the power and knowledge gap between management and labor and provides statistics claiming union workers earn more than nonunion workers and have employer-provided health coverage.

Opponents question its legality and the NLRB’s power to implement and enforce the rule. The legal arguments include that the posting violates employer first amendment free speech rights and the NLRA itself. The arguments that have gained the most traction are that it is illegal because of the lack of statutory authority about the rule (as compared to other notice posting requirements expressly permitted by federal law), and that Congress has not entrusted the NLRB with the authority to create such a rule. Other arguments claim that the rule and the associated costs of union representation threaten the vitality of smaller businesses and that the rule is unnecessary given the NLRA’s seventy-five year existence without it.

The discord over the rule recently led to an indefinite postponement of its effective date. Initially, the rule was set to become effective November 14, 2011, but was postponed twice. Now, it has been suspended indefinitely in response to court challenges. Deciding a challenge by the National Association of Manufacturers (NAM) in March, the District Court for the District of Columbia held that the NLRB lawfully promulgated the rule, but exceeded its authority in adopting provisions to enforce the rule. After obtaining a decision only partially in its favor, NAM appealed the decision to the Circuit Court of Appeals for the District of Columbia. On April 13, 2012, in a case brought against the NLRB by the U.S. Chamber of Commerce and South Carolina Chamber of Commerce, the District Court for the District of South Carolina held that the NLRB lacked the authority to promulgate the rule altogether. Just four days later, based in part on the South Carolina court’s decision, the D.C. Circuit issued an emergency injunction, delaying the effective date of the rule until at least September when a hearing of the appeal has been ordered to be scheduled.

In sum, there is both vehement support and opposition to the NLRB’s rule requiring notice of employee’s rights under the NLRA. For now, those parties are engaged in legal battles in federal courts and, as a result, there is unlikely to be any resolution until September 2012 at the earliest. Perhaps the most important question lost in the debate is a practical one: If the rule is declared legal, will the notice poster have any measurable effects on the employer-employee relationship at all? Presently, the milieu of required notices in workplaces often goes largely ignored by the workforce. Further, although not all employees have technological, educational or financial access, the reality is that NLRA rights information is but a few keystrokes or mouse clicks away. Is it worth all the fuss?

Glenn A. Duhl is a management employment and litigation lawyer at Siegel, O’Connor, O’Donnell & Beck, P.C., (860) 280-1215, gduhl@siegeloconnor.com. He represents management in preventive employment law and litigation of all employment matters. Kyle A. McClain is an associate in the firm’s Hartford office where he practices labor and employment law, exclusively representing the interests of management. Please visit www.siegeloconnor.com.

The information contained in this article is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice.