In August 2011, the National Labor Relations Board issued a final rule that would require most private sector employers to post a notice advising employees of their rights under the National Labor Relations Act. See, 29 C.F.R. section 104.202.
The rule, entitled "Notification of Employee Rights under the National Labor Relations Act," applies to any employer that falls under the NLRB's jurisdiction. This covers a broad range of private sector employers whose activity in interstate commerce exceeds a minimal level. The NLRB's website includes an exhaustive list of employers that are covered. Some examples include:
- Retailers if they have a gross annual volume of business of $500,000 or more,
- Non-retailers whose annual inflow or outflow is at least $50,000,
- Businesses providing essential links in the transportation of goods or passengers, if the minimum is $50,000 in gross annual volume,
- Health care and child care institutions with a gross annual volume of at least $250,000,
- Law firms and legal service organizations, with a minimum is $250,000 in gross annual volume, and
- Cultural and educational centers with an annual minimum of $1 million.
The rule does not apply to employers excluded from NLRB jurisdiction, such as federal, state and local governments, employers who employ only agricultural laborers, and employers subject to the Railway Labor Act. Federal contractors are only required to post a similar notice that is already required by the Department of Labor.
The notice should be posted in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted. Employers also should publish a link to the notice on an internal or external website if other personnel policies or workplace notices are posted there.
Any employer failing to post the notice would be subject to: (1) a finding that it committed an unfair labor practice; (2) a tolling of statutes of limitation for charges of any other unfair labor practices; and (3) a finding of anti-union animus that would weigh against it in any proceedings before the NLRB.
Importantly, however, two Circuit Courts of Appeal have reviewed this rule, striking it down, albeit for different reasons.
D.C. Circuit Court of Appeals
On May 7, 2013, the D.C. Circuit Court of Appeals held that the rule was invalid in National Association of Manufacturers v. National Labor Relations Board.
In so finding, Judge Randolph reasoned that section 8(c) of the NLRA was enacted by Congress to protect the right of free speech under the First Amendment, and to serve "a labor law function of allowing employers to present an alternative view and information that a union would not present."
The NLRB's rule violated section 8(c), according to Judge Randolph, because it makes non-coercive employer speech to be an unfair labor practice or evidence of an unfair labor practice. He compared the section 8(c) right to that of the First Amendment, which includes the right not to speak.
The opinion further held that the tolling provision, which would also be used to enforce the rule, violated section 10(b) of the NLRA, and furthermore, the NLRB made no showing that the 1947 Congress that enacted it intended to allow section 10(b) to be modified in the manner of the tolling rule.
The D.C. Circuit did not, however, decide whether the NLRB had authority to enact the rule in the first instance. Because it had found that all the methods for enforcing the rule were invalid and not severable from the posting requirement itself, the Court did not reach this issue. Of note, the concurring opinion by Judge Henderson, which was joined by Judge Brown, does advise that they would hold that the NLRB was without authority to promulgate the posting rule under NLRA section 6.
Fourth Circuit Court of Appeals
In Chamber of Commerce v. NLRB, issued on June 14, 2013, the Fourth Circuit Court of Appeals held that the National Labor Relations Board exceeded its authority when it enacted this rule that would require employers to post an official NLRB notice informing employees of their rights under the Act.
Writing for the Court, Judge Duncan reasoned that the NLRB did not have the authority to promulgate notice requirements because the NLRA only empowers the NLRB to carry out its defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon request.
The Court found that there was no function or responsibility not premised on these roles. Additionally, Congress enacted and amended the NLRA at the same time it was enabling other agencies to promulgate notice requirements, but never granted the Board the statutory authority to do so.
What Are Employers Are Required to Do Now?
The NLRB has advised that because the D.C. Circuit Court of Appeals has temporarily enjoined the NLRB's rule requiring the posting of employee rights, the rule will not take effect until the legal issues are resolved.
As of right now, there is no new deadline for the posting requirement at this time, according to the NLRB's website. Litigation of this issue will no doubt continue, and therefore monitoring of decisions by other circuits and the NLRB's website is advised.